NLRB Decision Shows Context is Key to Drafting Lawful Policies

In an opinion issued April 1, 2014, the National Labor Relations Board (NLRB) found the following provisions of Hills & Dales General Hospital’s personnel policies unlawful:

 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. 

Hills and Dales General Hospital (NLRB 2014). The NLRB decided that provisions 11 and 21 violated the National Labor Relations Act (NLRA), because they were overly broad and ambiguous and employees could reasonably construe them to prohibit protected Section 7 activity. The NLRA’s Section 7 protects employees’ rights to self-organize, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection. The Board specifically found that employees could construe the prohibitions against “negativity” and “negative comments” to prevent employees from discussing complaints about managers and co-workers that affect working conditions. 

The NLRB also ruled the requirement that “employees represent Hills & Dales in a professional manner” in provision 16 was equally overbroad and ambiguous and could be construed to prohibit employees from engaging in any “public activity or making any public statements that are not perceived as ‘positive’ towards [Hills & Dales].” The NLRB found that this would prevent employees from engaging in protected public protests of unfair labor practices, or making statements to third parties protesting terms and conditions of employment, both of which are protected Section 7 activities. 

The NLRB distinguished provision 16 from a provision it had previously held lawful. The lawful policy required employees to “represent the company in a positive and ethical manner.” The NLRB reasoned that the lawful policy was unlikely to chill the exercise of Section 7 rights because the policy as a whole addressed “conflicts of interests,” and the provision contained the term ethical rather than professional. Thus, the context of the policy did not implicate Section 7 rights. Provision 16, on the other hand, contained no such contextual protections.

As demonstrated in this case and the case discussed in last week’s Hot Topic, Court Rules Employer’s Confidentiality Policy Violates NLRA, policies that restrict when, where, or what employees communicate with each other or the public can quickly run afoul of the NLRA. Contact your MSEC representative to have your personnel policies reviewed to ensure that they comply with the NLRA.