St. Joseph's Hospital

National Labor Relations Board - Board Decisions

Jun 30, 1976

225 N.L.R.B. 348 (N.L.R.B. 1976)

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