Judge Finds That Hospital’s Unilateral Change of Dress Code Violates NLRA

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Sep 18, 2013

By Meyling Ly

An administrative law judge recently ruled that a New Jersey hospital violated the National Labor Relations Act by failing to respond to the union’s request for information and by unilaterally changing the dress code for nurses without giving the union notice or an opportunity to bargain.

The subject of the controversy began in March 2012, when the hospital sought to improve its nurse dress code. The hospital’s goal was to promote professionalism and enable easy identification of the departmental affiliation of nurses based on the color of the nurses’ scrubs.

In the month prior to the start of the initiative, hospital unit managers began informing nurses of the impending new policy at meetings, and by mid-April, nurses’ measurements were taken for new scrubs. In August, the hospital posted a notice requesting that nurses pick up their new scrubs and begin wearing them on Sept. 4, 2012. Included with the scrubs were copies of the new dress code policy.

Former dress code was more flexible

The hospital gave the nurses a 30-day grace period to comply with the new policy.

Under the new dress code, most nurses were required to wear a navy blue scrub uniform. Operating, delivery, and cardiac rehabilitation room nurses were required to wear colors and patterns specific to their departments. The hospital provided each nurse with three free uniforms in the required color.

Under the new policy, warmer clothing had to match the color of the scrubs. In addition, the policy prohibited the nurses from wearing fleece jackets and sweatshirts with hoods (hoodies). The new dress code policy included a progressive discipline policy.

By contrast, the prior dress code was flexible, giving each department the freedom to form their own dress codes, so long as they were professional and appropriate. The hospital did not provide uniforms except for surgery department nurses who were provided green scrubs in compliance with state law.

Judge: Hospital failed to respond to the union

Thus, under the past dress code policy, not only did nurses wear a variety of scrub colors and styles, but the nurses also commonly wore an assortment of warmer clothing over their scrubs, such as fleece jackets, hoodies, and sweatpants. The past dress code policy also did not specifically include disciplinary measures.

Before and after the new policy was implemented, the union wrote a letter to the hospital’s CEO, demanding bargaining over the dress code. The union also requested specific information about the new policy. The hospital declined to respond or provide the requested information, believing that the changes to the dress code were minor and within management’s sole discretion. The nurses’ union ultimately filed unfair labor practice charges against the hospital.

In ruling that the hospital violated the NLRA, the administrative law judge relied on the fact that the hospital failed to respond or reply to the union’s multiple requests for information and multiple requests to bargain. The judge rejected the hospital’s argument that it was not obligated to respond because the change to the dress code policy was de minimis and a proper exercise of management prerogative.

What the judge found

Instead, the judge found that the new dress code policy was a material, substantial and significant change that affected the terms and conditions of the nurses’ employment. According to the judge, labor law has long-established that employers have a duty to furnish relevant information regarding the terms and conditions of employment to a union representative during contract negotiations, which includes an employee’s appearance and attire.

The judge also relied on the fact that the new dress code policy was significantly different from the past dress code policy. The judge emphasized that the new policy rendered most of the nurses’ current personal scrub inventories useless. Likewise, the new dress code policy contained a progressive discipline policy for infractions. The judge also noted that the new policy allegedly caused at least one nurse discomfort from the cold in the winter.

This case serves as a reminder to hospital employers – where nurses’ unions are gaining strength – to be mindful of seemingly innocuous policy changes and union requests for information.

This was originally published on Littler Mendelson’s Healthcare Employment Counsel blog. © 2013 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.

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