Sacred Heart Medical Center

National Labor Relations Board - Board Decisions

Jun 30, 2006

347 N.L.R.B. 531 (N.L.R.B. 2006)

SACRED HEART MEDICAL CENTER
347 NLRB No. 48
531
Sacred Heart Medical Center and Washington State
Nurses Association. Case 19–CA–29150
June 30, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On March 24, 2005, Administrative Law Judge Mary
Miller Cracraft issued the attached decision. The Re-
spondent filed exceptions with supporting argument, and
the Charging Party filed 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 the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
The judge found that the Respondent violated Section
8(a)(1) of the Act by promulgating, maintaining, and
enforcing a policy that prohibits its employees from
wearing an “RNs Demand Safe Staffing” union button in
those parts of the Respondent’s medical facility where
employees might encounter patients or their families.
The Respondent excepts to the judge’s finding and con-
tends, among other things, that the restriction on this
particular button is justified by special circumstances.
We agree. Accordingly, we shall reverse the judge’s
decision and dismiss the complaint.
I. FACTS
The pertinent facts, largely stipulated to by the parties,
are as follows. The Respondent operates an acute care
medical center in Spokane, Washington. The Union
represents approximately 1200 of the Respondent’s
nurses. The parties have had a longstanding collective-
bargaining relationship dating back at least 20 years.
The nurses have worn a variety of union buttons over
the years without any objection on the part of the Re-
spondent. Messages stated on those buttons included
“Together Everyone Achieves More—WSNA,”
“WSNA-SHMC RN’s Remember ‘98,” and “Staffing
Crisis—Nursing Shortage—Medical Errors—Real Solu-
tioNs WSNA.”1
In the fall of 2003, the parties began negotiating a con-
tract to replace the agreement set to expire in January
2004.2 Nursing staff levels were among the subjects of
bargaining.3 During the course of negotiations, nurses
wore a new button that read “RNs Demand Safe Staff-

1 WSNA is an acronym for “Washington State Nurses Association,”
the Charging Party.
2 All dates hereafter are 2004 unless otherwise indicated.
3 The new contract was ratified in May.
ing.” In response to this button, the Respondent’s nurse
managers expressed concern to the Respondent’s human
resources department over the button’s impact on pa-
tients and their families.
On February 27, the Respondent issued a memoran-
dum limiting the areas of the hospital in which the “Safe
Staffing” button could be worn. The memorandum care-
fully explained the basis for the prohibition:
We know that staff have worn a variety of buttons over
the years for different purposes, and we have no objec-
tion to most messages. This message, however, dispar-
ages Sacred Heart by giving the impression that we do
not have safe staffing. We cannot permit the wearing of
these buttons, because patients and family members
may fear that the Medical Center is not able to provide
adequate care.
It is difficult for us to understand why nurses would
wear these pins at the risk of upsetting their patients,
particularly since we have come to agreement with [the
Union] at the bargaining table on issues related to staff-
ing and how staff will be involved when staffing issues
arise.
To assure that patients do not become alarmed or fear-
ful about patient care at Sacred Heart, effective imme-
diately, it is our expectation that no staff member will
wear these buttons in any area on our campus where
they may encounter patients or family members.
The Respondent did not discipline any nurse for wear-
ing the “Safe Staffing” button. Several nurses were,
however, asked to remove the buttons from their uni-
forms following the issuance of the memorandum.
II. ANALYSIS
In healthcare facilities, restrictions on the wearing of
union-related buttons are presumptively valid in immedi-
ate patient care areas. Casa San Miquel, 320 NLRB 534,
540 (1995). Outside immediate patient care areas, such
restrictions are presumptively invalid. Id. An employer
may rebut the presumption of invalidity, however, by
showing “special circumstances,” i.e., that the restriction
is “necessary to avoid disruption of health care opera-
tions or disturbance of patients.” Beth Israel Hospital v.
NLRB, 437 U.S. 483, 507 (1978).
Applying these principles here, we agree with the
judge that the Respondent’s restriction on wearing the
“RNs Demand Safe Staffing” button is presumptively
invalid because it extended beyond immediate patient
care areas to areas where employees might encounter
patients or their families. Contrary to the judge, how-
ever, we find that the Respondent has rebutted the pre-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD532
sumption of invalidity by showing “special circum-
stances” that justify the restriction.4
First, the Respondent established that the message pre-
sented by the button is one that would inherently disturb
patients. A reasonable person would construe the “Safe
Staffing” button as a claim that the Respondent’s staffing
levels are unsafe.5 Such a claim is likely to cause unease
and worry among patients and their families, and disturb
the tranquil hospital atmosphere that is necessary for
successful patient care. See NLRB v. Baptist Hospital,
442 U.S. 773, 784 (1979) (“‘[I]n the context of health-
care facilities, the importance of the employer’s interest
in protecting patients from disturbance cannot be gain-
said.’”) (quoting Beth Israel v. NLRB, supra, 437 U.S. at
505)).6
Thus, contrary to our dissenting colleague, we do not
view the message on this button as a “garden-variety
union button, with a slogan related to staffing concerns.”
Rather, in the context of an acute-care medical facility,
the button’s demand that staffing be made safe sends a
clear message to patients that their care is currently in
jeopardy. In light of this message, the Respondent took
appropriate steps to protect the atmosphere of patient
care in the facility, not by banning all buttons, but by
narrowly restricting the use of this single button, and
only in locations where they might be seen by patients or
their families.7

4 There are no exceptions to the judge’s finding that the button’s
message “presents a legitimate workplace concern and is protected by
Section 7.” There are also no exceptions to the judge’s finding that the
language on the button is not “alleged to be disloyal, recklessly made,
maliciously false, vulgar or obscene.”
5 As the Respondent argues in its exceptions, “If the union is inform-
ing patients and their families that they are ‘demanding safe staffing,’
the clear impression left to the patient and/or family member [is] that
the level of staffing must not be safe or the union would not be making
such demands.”
6 The Court in NLRB v. Baptist Hospital quoted favorably Justice
Blackmun’s “perceptive[]” comments on the importance of maintaining
a peaceful and relaxed atmosphere within hospitals:
Hospitals, after all, are not factories or mines or assembly plants.
They are hospitals, where human ailments are treated, where patients
and relatives alike often are under emotional strain and worry, where
pleasing and comforting patients are principal facets of the day’s ac-
tivity, and where the patient and his family—irrespective of whether
that patient and that family are labor or management oriented—need a
restful, uncluttered, relaxing, and helpful atmosphere, rather than one
remindful of the tensions of the marketplace in addition to the tensions
of the sick bed.
442 U.S. at 783, quoting Beth Israel, 437 U.S. at 509 (Blackmun, J., concur-
ring in judgment).
7 As noted above, the Respondent’s memo clearly states that the but-
ton is not to be worn by staff members “where they may encounter
patients or family members.” Thus, contrary to our colleague, the
Respondent did not simply ask that nurses remove the button in a “wide
and unspecified geographic area.” This prohibition is in accord with
Second, the nurses’ direct supervisors, who work on
the hospital floor and are in a position to gauge patients’
reaction to the button, expressed concern over the impact
the button may have on patients. This evidence supports
a finding of special circumstances. NLRB v. Baptist Hos-
pital, supra, 442 U.S. at 782–784.8
The judge and our colleague suggest that special cir-
cumstances cannot be shown in the absence of evidence
of actual disturbance of patients. We disagree. In NLRB
v. Baptist Hospital, the Supreme Court made clear that
evidence of actual disturbance is not required when it
held that the hospital demonstrated special circumstances
justifying a ban on solicitations in corridors and sitting
rooms on patient floors through testimony from its offi-
cials that in their opinion such solicitations would disturb
patients. Id. at 782–784. The Board’s decision in the
case makes clear that there was no evidence of actual
disturbance. Baptist Hospital, 223 NLRB 344, 357
(1976). Nevertheless, the Supreme Court, deferring to
the reasoned judgment of health care professionals, found
that special circumstances had been established.9
St. Luke’s Hospital, 314 NLRB 434 (1994), cited by
the judge, is not to the contrary. In rejecting the respon-
dent’s special circumstances defense in St. Luke’s, the
Board relied not only on the absence of evidence of pa-
tient complaints, but also on the innocuous “message

the Respondent’s concern that the button may be disruptive to patients
and their families.
8 Our dissenting colleague notes that no witness testified that the
nurses’ supervisors expressed these concerns. The record shows that
the parties stipulated that, if called, a particular witness would testify
that the hospital administration was approached by certain nurse man-
agers expressing their concern as to the impact of the safe staffing
button on the patients and their families; and thereby inquired as to how
to respond. The parties also agreed that the judge could give that stipu-
lated testimony the weight and relevance that she wished. In her deci-
sion, the judge stated that the parties “agreed that Respondent’s human
resources personnel were approached by certain nurse managers ex-
pressing their concern as to the impact of the ‘Safe Staffing’ button on
patients and their families.” Although the judge may have overstated
the stipulation, no party has excepted to the judge’s statement. Accord-
ingly, we shall accept it. See Custodis-Cottrell, Inc., 283 NLRB 585
fn. 2 (1987); Richard Mellow Electrical Contractors, 327 NLRB 1112,
1114 fn. 15, 1120 fn. 6 (1999) (having accepted stipulated testimony
concerning employer’s anti-Sec. 7 animus, judge erred in refusing to
rely on it on the grounds that he did not have an opportunity to observe
witnesses’ demeanor).
9 Our dissenting colleague asserts that our reliance on NLRB v. Bap-
tist Hospital is misguided and misplaced. In the dissent’s view, that
decision fundamentally concerned the Board’s definition of “immediate
patient care area.” Although one issue in the case was whether corri-
dors and sitting rooms on patient floors were “immediate patient care
areas,” the Court ultimately did not resolve that issue. For, even if they
were not, i.e., even if a presumption of invalidity applied, the evidence
rebutted it. Significantly, that evidence consisted of evidence of poten-
tial harm to patients. There was no testimony that there was actual
harm.
SACRED HEART MEDICAL CENTER 533
conveyed by the buttons” (“United to Fight for our
Health Plan”). Id. at 435. In the instant case, the mes-
sage is not innocuous. Unlike St. Luke’s, the wording on
the button is likely to disturb patients and their families.
Further, as the Supreme Court made clear in NLRB v.
Baptist Hospital, a hospital need not wait for the awful
moment when patients or family are disturbed by a but-
ton before it may lawfully be restricted. As the Board has
previously observed in the retail context, an employer
“need not await customer complaint before it takes le-
gitimate action to protect its business.” Nordstrom, Inc.,
264 NLRB 698, 701 fn. 12 (1982). See also Pathmark
Stores, Inc., 342 NLRB 1264 (2004) (upholding grocery
store’s ban on union insignia with the slogan “Don’t
Cheat About the Meat!” notwithstanding the absence of
evidence that any customer decided not to buy store’s
meat because of slogan). An employer’s interest in pre-
venting disturbance of its patients is certainly no less
strong in the healthcare context, where patients’ health
and welfare is at stake. NLRB v. Baptist Hospital, supra.
We also disagree with the judge’s and the dissent’s
conclusion that this case is controlled by Mt. Clemens
General Hospital, 335 NLRB 48, 50 (2001), enfd. 328
F.3d 837 (6th Cir. 2003). Instead, we find that Mt.
Clemens is factually distinguishable. In Mt. Clemens,
the respondent broadly prohibited employees from wear-
ing a union button with a line drawn through the letters
“FOT” in many areas of the hospital, including areas not
visited by patients or families.10 The respondent main-
tained that it was disruptive for RNs to wear this button
because patients might ask questions about the button
that would force RNs to enter into a dialogue with them
over the reasons why the RNs were upset with the hospi-
tal’s policy regarding mandatory overtime. In rejecting
the respondent’s defense, the Board relied on the absence
of evidence that the wearing of the button caused such a
dialogue to take place, resulted in complaints from pa-
tients or their families, or otherwise interfered with pa-
tient care or safety in any way.
Mt. Clemens is distinguishable in two important re-
spects. First, in Mt. Clemens, the button’s message was
cryptic, and the respondent’s rationale for banning it
rested on a chain of inferences: that patients would ask
what “FOT” meant, and that nurses would respond with
an explanation that disturbed the patients. Here, by con-
trast, the “RNs Demand Safe Staffing” button sends a
clear message to patients: current staffing levels at the
hospital are unsafe, and medical care is thus being com-
promised. No inferential leap is required in order to con-

10 “FOT” was a silent protest against forced overtime.
clude that a reasonable patient would be disturbed by this
message.
Second, in Mt. Clemens, even if patients and their
families were able to understand the button’s message,
they would have discerned that the union-management
dispute concerned the RNs’ own terms and conditions of
employment. The complaint was not that “forced over-
time” would harm patients. Rather the complaint was
that employees would be forced to do something that
they did not wish to do. Here, by contrast, the message
on the “RNs Demand Safe Staffing” button relates di-
rectly to issues of patient care and hospital safety. Thus,
while our colleague would characterize the button in the
instant case as similarly relating to working conditions,
unlike the button in Mt. Clemens, the “RNs Demand Safe
Staffing” message speaks primarily to safety and not
simply to bargaining over staffing levels.
That the Respondent allowed other buttons to be worn
during the relevant time period does not establish the
violation. Rather, that fact supports the Respondent. In
essence, the Respondent permits the wearing of buttons
except where they may jeopardize patient welfare and
disrupt the “peaceful and relaxed atmosphere” central to
the hospital’s mission. NLRB v. Baptist Hospital, 442
U.S. at 783, fn. 12. Thus, Respondent’s long history of
tolerance of more innocuous buttons, including those
sponsored by the Union, militates against a finding that
the Respondent’s limited restriction on one particular
button, which trumpets concerns about the safety of the
hospital’s staffing, was unlawful.11 Indeed, any claim
that the Respondent discriminated against buttons impli-
cating Section 7 activities—or restricted the wearing of
this button for that reason—is simply untenable under
these circumstances.12
This is true even though one of the permitted buttons
included the message “Staffing Crisis—Nursing Short-
age—Medical Errors.” Our dissenting colleague argues
that the Respondent undermined its claim (that it re-
stricted the “Safe Staffing” button out of concern for its
patients) by allowing this union button, which had a
“much more controversial message.” We disagree. Both
buttons related to the pending negotiations. If the Re-
spondent had targeted the “Safe Staffing” button solely
because of that fact, it obviously would have banned

11 Member Schaumber also finds that the availability of alternative
means supports the position of the Respondent. See NLRB v. Baptist
Hospital, supra, 442 U.S. at 785 and Beth Israel Hospital v. NLRB,
supra, 437 U.S. at 505.
12 Compare Holladay Park Hospital, 262 NLRB 278, 279 (1982)
(hospital unlawfully prohibited yellow union ribbon while allowing red
and green ribbons not related to union); George J. London Memorial
Hospital, 238 NLRB 704, 709–710 (1978) (hospital unlawfully prohib-
ited union button while allowing buttons that were not union-related).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD534
both. But the Respondent did not ban both, nor did it
seek to undermine the Union, with whom it had a long-
standing bargaining relationship, or impose any other
restrictions on employee Section 7 activities. When it
announced the limitations on the wearing of the “Safe
Staffing” button, the Respondent took pains to explain
that the justification was concerned over patient welfare.
On these facts, the limitations imposed by the Respon-
dent would not tend to coerce, restrain, and interfere with
employees in the exercise of their Section 7 rights.13
This case is thus in stark contrast to Mt. Clemens,
where the hospital broadly prohibited the wearing of the
targeted button in areas of the hospital where patients
and families would not be encountered and even re-
moved the buttons from RNs’ mailboxes. As noted
above, the Respondent did not proscribe the “Safe Staff-
ing” button in areas where patients or their families were
not present. Moreover, unlike the hospital in Mt. Clem-
ens, it carefully explained to the RNs, in writing, the
reasons for the limited restriction it imposed. For these
reasons, we cannot agree that employees would conclude
that the Respondent was not acting out of concern for its
patients from the fact that it limited the wearing of only
one of the Union’s many buttons.
Moreover, the mere fact that an employer has not pre-
viously forbidden union insignia does not foreclose that
employer from ever imposing restrictions on buttons,
particularly where, as here, that insignia is potentially
disruptive. In essence, the Act does not forbid a hospital
from concluding that certain insignia are more disruptive
than others. The Respondent has reasonably determined
that one union button is distinguishable from another and
is not as likely to disturb patients or their families. We
would not second guess its business judgment or con-
demn its decision not to broaden its ban to include both
buttons. See, e.g., NLRB v. Columbus Marble Works,
233 F.2d 406, 413 (5th Cir. 1956) (“[A]s we have so
often said: management is for management. Neither
Board nor Court can second-guess it or give it gentle
guidance by over-the-shoulder supervision.”).
III. CONCLUSION
The Respondent did not violate Section 8(a)(1) of the
Act by prohibiting its employees from wearing an “RNs
Demand Safe Staffing” button in any part of its facility
where patients or their families might be present. The
Respondent has rebutted the presumption of invalidity by

13 Chairman Battista further observes that it is not for the Board to
judge whether the one button or another would cause more concern to a
patient. That is a matter for the Respondent to judge. He simply con-
cludes that the Respondent did not discriminate along union lines.
showing special circumstances that justify the restriction.
Therefore, we shall dismiss the complaint.
ORDER
The complaint is dismissed.
MEMBER LIEBMAN, dissenting.
Reversing the judge, the Board today holds that the
Respondent established “special circumstances” permit-
ting it to broadly ban the wearing of a garden-variety
union button throughout the Respondent’s hospital.1 The
majority’s decision is flawed in two critical respects.
First, the Respondent has not even come close to show-
ing that its “special circumstances” defense is supported
by anything other than mere speculation that the button’s
message would likely disturb patients and their families.
Second, the undisputed fact that the Respondent imposed
no restrictions whatsoever on the wearing of a second
button with a much more controversial message com-
pletely undermines its asserted reasons for broadly pro-
hibiting the wearing of the button at issue. Accordingly,
on this record, there should be no doubt that the Respon-
dent violated Section 8(a)(1) of the Act.
I.
In a February 27, 20042 memorandum, the Respondent
adopted a policy prohibiting the wearing of an “RNs
Demand Safe Staffing” button “in any area on our cam-
pus where [employees] may encounter patients or family
members.”3 Nurses had been wearing the button in sup-
port of the Union’s position on staffing issues in contract
negotiations with management since the fall of the previ-
ous year,4 and no one had had ever complained about the
button. Nevertheless, as justification for the ban, the
Respondent’s memorandum stated that the button
“giv[es] the impression that we do not have safe staffing”
and “patients and family members may fear that the
Medical Center is not able to provide adequate care.”
Both before and after the issuance of the February

1 As the majority acknowledges, there are no exceptions to the
judge’s findings that (1) the button presents a legitimate workplace
concern and is protected by Sec. 7; and (2) that the button was not
alleged to be “disloyal, recklessly made, maliciously false, vulgar or
obscene.”
2 All dates are 2004 unless otherwise noted.
3 While the majority repeatedly asserts that the Respondent’s ban
was limited in scope, both the express language of the Respondent’s
February memo and nurses’ testimony at the hearing support the
judge’s finding that the prohibition covered a “wide and unspecified
geographic area.” Indeed, it is undisputed that at no time prior to or
after issuing the February memo did the Respondent either orally or in
writing clarify where the “RNs Demand Safe Staffing” button could or
could not be worn. Nurses were simply asked to remove the buttons
from their uniforms.
4 The majority’s characterization of the button as “new” is thus mis-
leading.
SACRED HEART MEDICAL CENTER 535
memorandum, the Respondent imposed no restrictions at
all on the wearing of a second button with the message,
“Staffing Crisis,” “Nursing Shortage,” and “Medical
Errors.” In other words, the Respondent allowed the
second button to be worn in both patient care and non-
patient care areas.
As the judge and the majority correctly recognize, the
Respondent’s prohibition on the wearing of the “RNs
Demand Safe Staffing” button is presumptively invalid
because it extended beyond immediate patient care areas.
Contrary to the majority, however, the judge properly
concluded that the Respondent failed to rebut the pre-
sumption by showing “special circumstances” justifying
the ban.
II.
The Board’s decision in Mt. Clemens General Hospi-
tal, 335 NLRB 48 (2001), enfd. 328 F.3d 837 (6th Cir.
2003), cited by the judge, is directly on point. The union
button at issue there depicted the letters “FOT” with a
line drawn through the center of the button, symbolizing
nurses’ opposition to the hospital’s forced overtime pol-
icy. 335 NLRB at 49. The hospital banned the button
from all areas of the hospital, asserting that special cir-
cumstances justified the restriction because the button
“could interfere with the welfare of patients or operations
of the Hospital.” Id. at 50. In rejecting the respondent’s
affirmative defense, the Board relied on the judge’s dual
findings that the respondent (1) did not prohibit the wear-
ing of any other insignia or union buttons in all areas of
the hospital, including patient care areas; and (2) failed
to introduce any evidence in support of its claim that the
wearing of the “FOT” button in patient care areas of the
hospital could cause possible disruptions in patient care.
Thus, the Board found that the respondent’s asserted
reason for banning the button was belied both by the
respondent’s inconsistent enforcement of its own policy,
and the absence of any complaints from patients or their
families that the wearing of the “FOT” button was dis-
ruptive to patient care or had caused a dialogue to take
place with the RNs. Id. at 50–51. Enforcing the Board’s
order, the Sixth Circuit agreed on both counts, noting
that the hospital’s attempt to justify the ban “depend[s]
primarily on speculation about the possible effect of the
buttons,” and that the hospital’s prior policy of allowing
nurses to wear union buttons in all areas of the hospital,
including buttons that were arguably more controversial
than the one at issue, “undercuts the Hospital’s conten-
tion that wearing the buttons would interfere with patient
care.” Mt. Clemens, 328 F.3d at 847–848.
The Mt. Clemens rationale applies with equal if not
greater force here. In lieu of presenting credible evi-
dence to support its affirmative defense, the Respondent
offers (1) its bald assertion that the text of the message,
“RNs Demand Safe Staffing,” is inherently disturbing;
and (2) sheer speculation that its nurse managers were
concerned that the button might cause unease among
patients and their families.5 The Board rejected these
types of speculative and conclusory arguments in Mt.
Clemens, and it should do so again today. Here, although
nurses were seen wearing the “RNs Demand Safe Staff-
ing” buttons by patients and their families, nothing hap-
pened. There was no evidence of reports from patients or
questions from family members. Rather, the nurses wore
the button for months without incident. This evidence
shows that the buttons did not, in fact, disturb patients,
their families, or the tranquil atmosphere of the hospital.
By contrast, the majority points to absolutely no evidence
in support of its conclusion that the button’s message is
reasonably likely to disturb patients and their families.
Simply put, the majority’s assumption as to how patients
would “likely” interpret the button’s message is un-
founded.
Furthermore, just as the respondent in Mt. Clemens
failed to justify its banning of the “FOT” button, while
allowing arguably more controversial buttons, the Re-
spondent here has offered no satisfactory explanation for
banning the “RNs Demand Safe Staffing” button, yet
allowing the “Staffing Crisis,” “Nursing Shortage,” and
“Medical Errors” button to be worn without restriction.
The Respondent’s inconsistent policy completely under-
mines its assertion that the “RNs Demand Safe Staffing”
button would likely disturb patients and their families.6

5 Not a single witness testified in support of the Respondent’s special
circumstances defense. The only “evidence” offered by the Respondent
was what the parties termed an “offer of proof” that, if called to the
stand, the Respondent’s vice president of human resources, Diana
Eickhoff, would testify that certain nurse managers “expressed their
concern” to hospital administration about the impact of the “RNs De-
mand Safe Staffing” button on patients and their families. Even accept-
ing the truth of this “stipulated testimony,” as the majority does here, it
does nothing to advance the Respondent’s special circumstances de-
fense. A single vague suggestion that unspecified “concerns” were
raised—absent any facts or additional explanation indicating how the
button could reasonably tend to disturb patients or their families—is
patently insufficient to establish the Respondent’s affirmative defense.
6 The majority’s discussion of whether the Respondent “discrimi-
nated against buttons implicating Section 7 activities” misses the point
entirely. The General Counsel is not asserting a claim of discrimina-
tion. Rather, the General Counsel is alleging unlawful interference with
the employees’ fundamental Section 7 right to wear union insignia at
work. The Board has long held that “interference, restraint, and coer-
cion” under Sec. 8(a)(1) does not turn on the employer’s motive. We-
basto Sunroofs, Inc., 342 NRLB 1222, 1223 (2004) (“The basic test for
an 8(a)(1) violation is whether the employer engaged in conduct, re-
gardless of intent, which reasonably tends to interfere with the free
exercise of employee rights under the Act” (citing American Freight-
ways Co., 124 NLRB 146, 147 (1959)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD536
In its attempt to factually distinguish Mt. Clemens, the
majority suggests that patients and their families would
be able to discern that the “FOT” button in Mt. Clemens
concerned a union-management dispute about the RNs’
terms and conditions of employment, while they would
interpret the “RNs Demand Safe Staffing” button to ex-
press a message concerning patient safety, not employ-
ees’ employment conditions. Their reasoning is unper-
suasive. Whether a button protests “forced overtime” or
demands “safe staffing,” both messages obviously relate
to the impact of inadequate staffing levels on the hours
RN’s are required to work and the conditions they labor
under. It is wholly undiscerning for the majority to sug-
gest otherwise. Mt. Clemens, 328 F.3d at 844 fn. 6
(“[T]he buttons do demonstrate support for the Union’s
position that the Hospital should not employ forced over-
time to resolve staffing shortages.”) (emphasis added).
See generally Waters of Orchard Park, 341 NLRB 642,
644 (2004) (citing with approval Misericordia Hospital
Medical Center, 246 NLRB 351 (1979), enfd. 623 F.2d
808 (2d Cir. 1980)), for the proposition that “staffing
levels and the number of patients to be cared for” are
issues “directly related” to nurses’ working conditions,
and that for nurses “to complain about their own staffing
levels and the impact on patients” constitutes protected
concerted activity.”) (emphasis added); Community Hos-
pital of Roanoke Valley, 220 NLRB 217, 222 (1975),
enfd. 538 F.2d 607 (4th Cir. 1976) (nurse’s public com-
ments about hospital understaffing were protected be-
cause they expressed dissatisfaction with nurses’ condi-
tions of employment). Anyone viewing the “RNs De-
mand Safe Staffing” button, which bears the union’s
insignia, would likely identify it for what it really is: a
garden-variety union button, with a slogan related to
staffing concerns, worn by RNs during the course of la-
bor negotiations with management over the terms and
conditions of their employment.

Here, there is no question that the nurses engaged in protected con-
duct by wearing the “RNs Demand Safe Staffing” button and that the
Respondent in fact interfered with that conduct by banning the button.
The Respondent’s only defense is that its actions were justified by
special circumstances—namely, the need to protect patients and their
families from a disturbing message. The Respondent’s history of al-
lowing a button declaring the message, “Staffing Crisis,” “Nursing
Shortage,” and “Medical Errors,” is significant not because it reveals a
discriminatory motive for banning the button at issue here, but because
it is probative of whether the Respondent established its “special cir-
cumstances” defense. Although the Respondent bore the burden of
proving that defense, it adduced no evidence that allowing such a con-
troversial button in the past had caused disturbances of any kind. It
follows, then, that allowing the comparatively innocuous button at
issue here would not reasonably tend to disturb patients or their fami-
lies.
The majority also mischaracterizes St. Luke’s Hospital,
314 NLRB 434 (1994). There, the Board, reversing the
judge, concluded that the Respondent did not prove spe-
cial circumstances to justify its ban on nurses’ wearing of
“United to Fight for our Health Plan” buttons and stick-
ers. Id. at 435. To be clear, the Board rejected the re-
spondent’s affirmative defense for the same reason it
should today: a failure of proof. St. Luke’s simply does
not support the majority’s holding that a respondent may
prove its affirmative defense of special circumstances on
the basis of nothing more than sheer speculation.
III.
In concluding that the Respondent has shown special
circumstances to justify its broad ban, the majority has
excused the Respondent’s failure to meet its burden of
proof.7 While some Board cases suggest that an em-
ployer need not wait until patients are actually disturbed
before taking action, I cannot agree with the majority’s
willingness to excuse the Respondent from producing at
least some credible evidence to support its special cir-
cumstances defense.8 Because our precedent requires us

7 The majority’s reliance on NLRB v. Baptist Hospital, 442 U.S. 773
(1979), for the proposition that the Respondent has met its burden to
show special circumstances is both misguided and misplaced. Funda-
mentally, the Court’s holding in Baptist Hospital was not that the em-
ployer established special circumstances to justify its broad ban on
union solicitation in both patient and nonpatient care areas. Rather, the
Court determined, contrary to the Board, that the corridors and sitting
rooms adjoining or accessible to patients’ rooms and treatment rooms
were “immediate patient care areas” where solicitation could be
banned. Id. at 782–786. The Court agreed with the Board, however,
that solicitation in the cafeteria, gift shop, and lobbies on the first floor
of the hospital could not lawfully be prohibited because the hospital
failed to meet its burden to show that special circumstances justified the
ban as to those areas. Id. at 782, 786. Thus, to the extent that the Court
relied on the testimony of hospital personnel in Baptist Hospital, it was
only with respect to the issue of whether the Board had defined “imme-
diate patient care areas” too narrowly, which the Court determined that
it had. That same testimony, however, was deemed “insufficient to
rebut the Board’s presumption that the needs of essential patient care do
not require the banning of all solicitation” in non-patient care areas. Id.
at 786 (emphasis added). In other words, contrary to the majority’s
interpretation, the Baptist Hospital Court expressly found that the hos-
pital failed to meet its burden to show special circumstances to justify
its sweeping ban on union solicitation. It also bears repeating (see fn.
5, supra) that contrary to the “extensive evidence” introduced by the
respondent in that case, here, the Respondent offered no probative
evidence in support of its affirmative defense.
8 The concept that the party asserting the special circumstances de-
fense is required to come forward with some credible supporting evi-
dence dates back to the Supreme Court’s decision in Beth Israel Hospi-
tal v. NLRB, 437 U.S. 483, 492 (1978). In that case, the Court aptly
noted that the effect of the Board’s rules in balancing the rights of em-
ployees and employers is “to make particular restrictions on employee
solicitation and distribution presumptively lawful or unlawful under §
8(a)(1) subject to the introduction of evidence sufficient to overcome the
presumption.” (emphasis added). See also St. Luke’s Hospital, 314
NLRB 434, 435 (1994) (“Although the judge found that some patients
SACRED HEART MEDICAL CENTER 537
to hold a party to its burden of proof, and to reject af-
firmative defenses that are so obviously lacking in evi-
dentiary support, I dissent.
Stephanie Cottrell, Esq., for the General Counsel.
Bruce Bishoff, Esq., of Bend, Oregon, for the Respondent.
Linda Machia, Esq., of Seattle, Washington, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge. The
issue in this case is whether Respondent Sacred Heart Medical
Center violated Section 8(a)(1) of the Act1 by requesting re-
moval of a button in any areas where patients or patients’ fami-
lies might see the button. The Washington State Nurses Asso-
ciation (the Union) button stated, “RNs Demand Safe Staffing.”
Respondent allowed other union buttons to be worn throughout
the hospital, including patient care areas.
On the entire record,2 including briefs filed by all parties, I
make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent is a State of Washington corporation which op-
erates an acute care medical facility in Spokane, Washington.
During the 12 months preceding issuance of the complaint,
Respondent had gross revenue in excess of $250,000 and it
purchased and received goods valued in excess of $5000 di-
rectly from suppliers located outside the State of Washington.
Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that it is a health care institution within the mean-
ing of Section 2(14) of the Act.
Respondent admits, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. FACTS
Respondent and the Union have maintained a collective-
bargaining relationship for at least the past 20 years. Currently
there are about 1200 registered nurses in the bargaining unit.
The parties’ most recent contract expired in January 2004. Dur-
ing bargaining for a successor contract, one of the issues was
nursing staff levels. Bargaining commenced in the fall of 2003.
A contract was ratified in May 2004.

might be upset by the buttons in the manner suggested by the Respon-
dent, the record is devoid of any evidence to support this supposi-
tion.”); Mesa Vista Hospital, 280 NLRB 298, 299 (1986) (“[T]he Re-
spondent must demonstrate an adverse impact on patient care in those
areas of the hospital where the [broad] ban applies.”).
1 Sec. 8(a)(1) of the Act provides that an employer may not interfere
with, restrain, or coerce employees in the exercise of the rights guaran-
teed by Sec. 7 to, inter alia, form, join, or assist labor organizations and
to bargain collectively through representatives of their own choosing.
2 The charge was filed by the Union on March 2, 2004. Complaint
issued on June 30, 2004. Trial was on October 7, 2004, in Spokane,
Washington.
The parties stipulated that even though union buttons have
been worn by nurses throughout the hospital for many years,
Respondent had no occasion to request removal of a button
until February 27, 2004, when Respondent requested that the-
button depicted below the “Safe Staffing” button be removed
pursuant to the terms of a February 27, 2004 memorandum.
The February 27, 2004 memorandum referred to in the par-
ties’ stipulation is as follows:
It has come to our attention that some staff are wearing but-
tons which say, “RNs Demand Safe Staffing.” We know that
staff have worn a variety of buttons over the years for different
purposes, and we have no objection to most messages. This
message, however, disparages Sacred Heart by giving the im-
pression that we do not have safe staffing. We cannot permit
the wearing of these buttons, because patients and family mem-
bers may fear that the Medical Center is not able to provide
adequate care.
It is difficult for us to understand why nurses would wear
these pins at the risk of upsetting their patients, particularly
since we have come to agreement with [the Union] at the bar-
gaining table on issues related to staffing and how staff will be
involved when staffing issues arise.
To assure that patients do not become alarmed or fearful
about patient care at Sacred Heart, effective immediately, it is
our expectation that no staff member will wear these buttons in
any area on our campus where they may encounter patients or
family members.
Other buttons worn by nurses during this same period of time
included the following:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD538
WSNA SHMC RNs
REMEMBER

The parties also agreed that Respondent’s human resources
personnel were approached by certain nurse managers express-
ing their concern as to the impact of the “Safe Staffing” button
on patients and their families. Finally, the parties agreed that
two witnesses who were not called to testify would testify simi-
larly to witnesses who testified; that is, these witnesses would
testify that while they were wearing the “Safe Staffing” button,
they were not questioned by patients or patients’ families about
the button.
There is no evidence that any employee was disciplined for
wearing the “Safe Staffing” button. Various employees were,
however, asked to remove these buttons following issuance of
the memorandum.
III. ANALYSIS
Employees have a protected Section 7 right to make public
their concerns about their employment relation, including a
right to wear union insignia at work. Republic Aviation Corp. v.
NLRB, 324 U.S. 793, 801–803 (1945). In health care facilities,
however, the right to wear union insignia may be limited to
nonpatient care areas. In other words, a health care facility may
lawfully prohibit union buttons in immediate patient care areas.
NLRB v. Baptist Hospital, 442 U.S. 773, 781 (1979). Histori-
cally, however, Respondent did not seek to limit union insignia
in any areas. Prior to February 27, 2004, Respondent allowed
union insignia without regard to the distinction between patient
care and nonpatient care areas.
Employer prohibitions on hospital employees’ right to wear
union buttons in nonpatient care areas, which refer to employ-
ment concerns, must be justified by evidence that the rule is
“necessary to avoid disruption of health care operations or dis-
turbance of patients.” Mt. Clemens General Hospital, 335
NLRB 48 (2001), quoting Beth Israel Hospital v. NLRB, 437
U.S. 483, 507 (1978) (hospitals or other health care institutions
may be justified in imposing more stringent prohibitions in
order to afford tranquil environment to patients). Additionally,
the union button or insignia must be related to an employment
concern and not so disloyal, reckless, or maliciously untrue as
to lose the Act’s protection. Mountain Shadows Golf Resort,
330 NLRB 1238, 1240 (2000), relying on NLRB v. Electrical
Workers UE Local 1229 (Jefferson Standard), 346 U.S. 464
(1953).
General Counsel and the Charging Party argue that this case
is controlled by Mt. Clemens General Hospital, supra, arguing
that Respondent has failed to show “special circumstances”
privileging its prohibition. Additionally, they argue that Re-
spondent’s prohibition is presumptively invalid because it in-
cludes both immediate patient care areas as well as nonpatient
care areas. In agreement, I find that Respondent’s prohibition of
the “Safe Staffing” button in areas other than those devoted to
patient care obviously runs afoul of Beth Israel Hospital, supra,
and its progeny, unless Respondent’s prohibition was “neces-
sary to avoid disruption of health care operations or disturbance
of patients”3 or unless the button is not protected by Section 7
of the Act.4
Respondent argues that its prohibition is valid because the
“Safe Staffing” button would likely disturb patients, citing
Mesa Vista Hospital, 280 NLRB 298, 298–299 (1986). How-
ever, as Respondent concedes, there is no direct evidence that
the “Safe Staffing” button actually disturbed patients. Neverthe-
less, Respondent relies on the logical import of the language of
the “Safe Staffing” button, arguing that one might logically
deduce from the language “Nurses Demand Safe Staffing” that
Respondent’s current staffing levels were deemed “unsafe” by
its nurses. Such an assertion, in Respondent’s view, would
likely disturb patients and patients’ families because they would
reasonably fear that their medical care was unsafe.
Respondent’s argument that its prohibition is privileged by
“special circumstances” must fail. First, Respondent bears the
burden of proving “special circumstances.” See, e.g., Beth Is-
rael Hospital, supra, 437 U.S. at 507. There is no evidence that
any of Respondent’s patients were actually disturbed. In the
absence of such evidence, Respondent’s “special circum-
stances” argument is unproven. St. Luke’s Hospital, 314 NLRB
434, 435 (1994) (“special circumstances” argument fails where
record devoid of evidence to support supposition that patients
might be upset by “United to Fight for our Health Plan” buttons
and stickers); cf. Pathmark Stores, 342 NLRB 378, 379 (2004)
(absence of evidence that slogan actually threatened customer
relationship not fatal where slogan “Don’t Cheat About the
Meat!” reasonably threatened to create concern among custom-
ers about being cheated).
Second, Respondent did not limit its prohibition to patient-
care areas. Respondent’s rule required that the “Safe Staffing”
buttons be removed in areas where patients or patients’ families
might see the buttons. This wide and unspecified geographic
area is an overly broad prohibition on Section 7 activity. See,

3 NLRB v. Baptist Hospital, supra at 781. At fn. 11, the Court stated,
“A hospital may overcome the presumption of showing that solicitation
is likely either to disrupt patient care or disturb patients.”
4 Jefferson Standard, supra, 346 U.S. at 476–477.
SACRED HEART MEDICAL CENTER 539
e.g., Medical Center of Beaver County, 266 NLRB 429, 430
(1983), relied upon by the Charging Party.
Third, the language on the “Safe Staffing” button did not
disparage Respondent’s services nor is it alleged to be disloyal,
recklessly made, maliciously false, vulgar or obscene. Rather,
the somewhat generalized statement, “RNs Demand Safe Staff-
ing,” presents a legitimate workplace concern and is protected
by Section 7. See, e.g., St. Luke’s Episcopal-Presbyterian Hos-
pitals, 331 NLRB 761, 762 (2000) (employer violated Sec.
8(a)(1) and (3) by discharging a nurse who gave a TV interview
in which she made a statement about inadequate staffing levels
of medical teams in her department).
Finally, Respondent did not historically limit union insignia
in patient-care areas. Thus, the “special circumstances” analysis
applied in many cases where such patient-care area bans are
present, is inapplicable here. See, e.g., Evergreen Nursing
Home, 198 NLRB 775, 779 (1972) (bright yellow union but-
tons approximately 2 inches square were lawfully prohibited by
the nursing home which had long maintained strict rule limiting
all-white uniform adornment to name tag and professional af-
filiation only).
CONCLUSION OF LAW
By promulgating, maintaining and enforcing a policy prohib-
iting employees from wearing a union button “in any area on
our campus where they may encounter patients or family mem-
bers,” the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]