NLRB rejects common handbook policies barring ‘negativity’

by Brian R. Garrison

The National Labor Relations Board (NLRB) has been focusing its attention on policies in nonunion companies’ employee handbooks, finding certain policies violate the National Labor Relations Act (NLRA) by restricting employees’ ability to engage in protected concerted activity. Continuing that trend, the NLRB recently found that work rules barring employees from making negative comments about coworkers and requiring them to represent their organization in the community in a “positive and professional manner” were unlawful. The Board’s decision is the newest in a series of decisions finding work rules and handbook policies unlawful because they restrict employees’ rights under the NLRA. 

Policy required ‘positive and professional’ behavior
Hills & Dales General Hospital in Michigan had an employee policy titled “Values and Standards of Behavior.” In its “Teamwork” section, the policy stated: “We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.” It also stated: “We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.” In a section titled “Attitude,” the policy stated: “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 asked employees to sign a copy of the policy, and it then placed the signed documents in their personnel files. Employees were disciplined for violating the policy. This case was filed after an employee received a disciplinary warning for posting negative Facebook comments about the hospital.

Applicable legal standard
The NLRB has held that an employer violates the NLRA if it maintains a work rule or policy that would “reasonably tend to chill [dissuade] employees in the exercise of their Section 7 rights.” The Board has developed a two-step inquiry to determine whether a workplace rule has such an effect.

First, a rule will be found unlawful if it explicitly restricts employees’ Section 7 activities—i.e., the right to join a union and to collectively bargain over their terms of employment, and the right not to engage in those activities. Second, if the rule doesn’t explicitly restrict protected activities, it will still be found to violate the NLRA if it can be shown that (1) employees would reasonably construe the language to prohibit Section 7 activity, (2) the rule was promulgated in response to union activity, or (3) the rule has been applied to restrict the exercise of Section 7 rights.

The NLRB has held that rules or policies are unlawful when they are ambiguous about their application to Section 7 activity and contain no limiting language or context that would make it clear to employees that they don’t restrict Section 7 rights. By contrast, the NLRB has held that rules aren’t unlawful when they clarify and restrict their scope by including examples of clearly illegal or unprotected conduct and therefore couldn’t reasonably be construed to prohibit protected activity.

NLRB finds policies unlawful
Under those standards, the hospital argued that the rule prohibiting negativity could be unlawful only if it was linked to employees’ engagement in Section 7 activities. The NLRB disagreed, finding that the rule was “unlawfully overbroad and ambiguous by its terms.” The Board also rejected the hospital’s argument that the rule was lawful because employees participated in drafting it.

The NLRB split in its ruling on the requirement that employees “represent Hills & Dales in the community in a positive and professional manner in every opportunity.” In a prior case, Tradesmen International, the Board had found that a rule requiring employees to represent their organization in a “positive and ethical manner” was lawful. The NLRB majority distinguished that case from this case on two grounds, however:

1. The Tradesmen International rule was in a conflict-of- interest policy and not closely related to any unlawful rule.
2. The term “positive” coupled with “ethical” in the context of a conflict-of-interest policy has a significantly narrower meaning than it does when it’s coupled with the word “professional,” which is a broad and flexible concept as applied to employee conduct.

In dissent, NLRB Member Harry Johnson found no meaningful distinction between the rules. He would have found Hills & Dales’ “positive and professional” rule lawful.

Ultimately, the NLRB found that the hospital interfered with its employees’ rights by prohibiting them from making negative comments about coworkers or 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.”

Bottom line
Given this decision and the NLRB’s recent history of finding common employee handbook policies unlawful, you should review your handbook policies and assess whether they could be read as restricting employee rights protected by the NLRA. We will keep you updated on any further NLRB developments in this area.

Brian R. Garrison is a partner with Faegre Baker Daniels LLP in Indianapolis, Indiana. He may be contacted at brian.garrison@faegrebd.com.