Court Reverses NLRB to Permit Union Buttons on the Job

January 13, 2009 by Beeson Tayer & Bodine

The Ninth Circuit sided with a nurses’ union when it reversed the NLRB and struck down a hospital’s rule barring nurses from wearing buttons at work protesting staffing conditions.

The court dismissed the employer’s claim that the buttons (reading: “RNs Demand Safe Staffing”) caused distress to patients and their families. The court ruled that the hospital’s claim was purely speculative, and not supported by evidence of any harm. Accordingly, the rule was invalid, and amounted to an unfair labor practice. Washington State Nurses Assoc. v. NLRB, 526 F.3d 577 (2008).

In general, the Board upholds the right to wear union buttons or other union insignia as protected, concerted activity in the workplace. Employers, however, may make rules that restrict the wearing of such buttons if they can show that “special circumstances” exist, like the need to prevent customer alienation or harm to patients in a hospital setting. Whether special circumstances justify a particular employer’s rule will depend on the facts of the case.

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