April 08, 2014

NLRB Finds Rule Banning Negativity Unlawful

Is a rule banning employees from making negative comments about coworkers unlawful? The National Labor Relations Board (NLRB) says it is. Can you require employees to represent your organization in the community in a "positive and professional manner?" The NLRB says no. The NLRB's decision in Hills and Dales General Hospital is the newest in a series of recent NLRB decisions finding employee handbook policies overly broad and, thus, unlawful.

In Hills and Dales, the NLRB found that a Michigan hospital interfered with its employee's rights by prohibiting them from making negative comments about coworkers and from engaging in or listening to negativity or gossip, and by requiring them to represent the organization in the community in a "positive and professional manner."

Hills and Dales General Hospital had an employee policy on "Values and Standards of Behavior." It stated:

Teamwork . . .
11.  We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.
16.  We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.

Attitude . . .
21.  We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.

The hospital argued that rules 11 and 21 prohibiting negativity could only be unlawful if linked to employees' engagement in Section 7 activities. The NLRB, however, stated that the rule is "unlawfully overbroad and ambiguous by its terms." The NLRB also shot down the hospital's argument that the rules are lawful since employees participated in drafting them. 

The NLRB had a split of opinion concerning rule 16. In a prior case, Tradesmen International, the NLRB had found that a rule requiring employees to represent their organization in a "positive and ethical manner" was lawful. The majority distinguished Tradesmen International from this case on two grounds: (1) the Tradesmen International policy was in a conflict of interest policy and not proximate to any unlawful rule, and (2) the term "positive," coupled with "ethical," in the context of a conflict of interest policy has a significantly narrower scope of meaning than when that term is coupled with the word "professional," which is a broad and flexible concept when applied to employee conduct. In dissent, Member Johnson found no meaningful distinction between the rules and would have found rule 16 lawful.

Given this recent development and the NLRB's other recent decisions finding commonly found employee handbook policies unlawful, we expect that many clients would benefit from a review of their employee handbooks. If you would like to discuss how the NLRB's recent employee handbook policy decisions affect you, please contact the author or any member of the  Faegre Baker Daniels labor management relations group.

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