THE NLRB DOESN’T LIKE YOUR ATTITUDE
Of course, that’s a joke. But what isn’t a joke is that the NLRB has continued to employ that mantra in the eyes of many well-meaning employers by frustratingly interpreting Section 7 of the National Labor Relations Act. The most recent case came in the form of a decision to strike down portions of an employer’s standards and conduct policy, and is yet another example of the Obama Labor Board finding a common employment policy – one which employers have regularly included in their handbooks for decades – to be unlawful.
In the case, Hills and Dales General Hospital, the policy at issue was the employer’s “Values and Standards of Behavior Policy,” a policy which – ironically enough – was developed jointly by management and Hospital employees. The policy provided that employees were not to make “negative comments about [their] fellow team members,” and were not to “engage in or listen to negativity or gossip.” The policy also provided that the employees would “represent [the Hospital] in the community in a positive and professional manner in every opportunity.”
Notwithstanding the fact that employees helped develop the policy, one particular Hospital employee chose to file a charge with the NLRB alleging that the policy interfered with his and other employees’ rights protected by Section 7 to engage in concerted activity. In evaluating the policy, the Board concluded that the prohibitions on “negative comments” and “negativity or gossip,” and the requirement that employees represent the Hospital in a “positive and professional manner” were overbroad and ambiguous. The Board reasoned that the employees could reasonably construe such language as discouraging them from engaging in protected activity (like complaining about working conditions or protesting unfair wage and hour labor practices).
While the Hospital argued that the employees’ involvement in drafting the policy meant that any ambiguity had been removed, the Board did not feel that made any difference. According to the Board, employee involvement is not a surefire way to ensure that a policy protects Section 7 rights.
Hopefully, most employers know by now that the current Board has engaged in a practice over the last several years of scrutinizing workplace policies and employment handbooks with an eye toward striking down any rules that may possibly be construed as discouraging employees from engaging in protected conduct. The NLRB’s ruling in Hills and Dales General Hospital is no different. Now, long-standing policies intended to promote positive attitudes and getting along in the workplace need to be re-evaluated. If you have any doubt about whether your workplace policies – whether of the variety designed to preserve civility, or otherwise – might now be unlawful, contacting competent legal counsel is advised.