NLRB: Targeting Employer Attempts To Rule Out “Negativity” In The Workplace


by Abbey Moland

Moland_Abbey

amoland@mcgrathnorth.com
(402) 341-3070

On April 1, 2014, the National Labor Relations Board (NLRB) ruled that a non-union employer’s work rules barring “negativity” and requiring employees to represent their employer “in the community in a positive and professional manner” violated Section 7 of the National Labor Relations Act (NLRA). Section 7 of the NLRA, in relevant part, gives employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.

In Hill and Dales General Hospital, a hospital attempted to improve its work culture, which was plagued by low morale, departing employees and patients seeking care in other hospitals. The Hospital issued a new “Values and Standards of Behavior” policy, which  provided:

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 NLRB concluded that paragraphs 11 and 21’s prohibitions on “negative comments” and “negativity” were in violation of Section 7 of the NLRA. The NLRB concluded that an employee could reasonably construe those policies “to bar them from discussing with their coworkers complaints about their managers that affect working conditions, thereby causing employees to refrain from engaging in protected activities.”

The NLRB also determined that paragraph 16’s “requirement that employees ‘represent [the Respondent] in the community in a positive and professional manner’ is just as overbroad and ambiguous.” According to the Board, employees would reasonably view the language “as proscribing them from engaging in any public activity or making any public statements (i.e., ‘in the community’) that are not perceived as ‘positive,’” which would discourage employees from “engaging in protected public protests of unfair labor practices, or from making statements to third parties protesting their terms and conditions of employment.”

Notably, the NLRB had no objection to paragraph 21’s prohibition on “gossip.” In the underlying decision, the Judge noted that paragraph 21 “would arguably be on solid ground” if limited only to a prohibition on gossip as distinguished from “negativity.”

Nevertheless, the NLRB concluded that the policy was facially invalid, and  ordered the Hospital to rescind the rules. Had the Hospital disciplined or terminated an employee for violating an unlawful rule, it would have been ordered to, among other remedies, revoke that discipline and “make whole” the disciplined employee for the employee’s economic losses.

Hill and Dales General Hospital follows a pattern of recent Board decisions, dating back to 2012, finding facially neutral employee handbook policies and workplace rules unlawful. Given the Board’s continued focus in this area, both union and non-union employers are advised to continue to monitor the law, and seek legal advice as necessary, to ensure that employee handbook provisions and workplace rules do not violate the new standards which are being created and enforced by the NLRB.

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