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NLRB finds “negativity” and “discourtesy” employee rules illegal

April 9, 2014

Last week, the National Labor Relations Board (NLRB) issued two decisions further illustrating the need of non-union employers to carefully review and draft their employee policies. In Hills and Dales General Hospital, 360 NLRB No. 70, the NLRB found unlawful under the National Labor Relations Act (NLRA) three sections of the hospital’s Values and Standards of Behavior Policy that: (1) prohibited employees from making “negative comments” about “fellow team members,” which included managers; (2) required employees to represent the hospital “in the community in a positive and professional manner;” and (3) provided that employees could “not engage in or listen to negativity or gossip.” The NLRB found the “negative comments” and “negativity” proscriptions to be overly broad and ambiguous. The NLRB also held that requiring employees to represent the hospital “in the community in a positive and professional manner” acted to discourage employees from, for example, engaging in protected public protests of unfair labor practices or making statements to third parties protesting their terms and conditions of employment—activities that may not be “positive” toward the hospital but is protected by Section 7 of the NLRA. 

In First Transit, Inc., 360 NLRB No. 72, the NLRB found that a bus company’s rule in its handbook banning “[d]iscourteous or inappropriate attitude or behavior toward passengers, other employees, or members of the public” could be reasonably interpreted by employees to chill their communications concerning employment protected under Section 7 of the NLRA and thus illegal. The NLRB also rejected the bus company’s argument that its freedom of association policy acted as a savings clause precluding a finding that the rule violated the NLRA.

These two decisions continue the current NLRB’s scrutiny of non-union workplaces. It is vitally important that all employers consider these decisions in reviewing and drafting their handbooks and employee policies. If you have any questions about these cases or would like to have your handbook or policies reviewed, please contact one of Honigman’s Labor and Employment attorneys.