Last week, the National Labor Relations Board (NLRB) ruled that a hospital’s work rules prohibiting negative comments and requiring that employees represent the hospital “in the community in a positive and professional manner” violated federal law. This decision is the latest in a trend of rulings (e.g., Banner Estrella Medical Center) showing the NLRB’s aversion to what it views as overly broad employer policies. Consequently, employers should continue to take great care when drafting or issuing employee handbooks and policies to avoid overly broad restrictions that might violate the National Labor Relations Act (NLRA).

In Hills and Dales General Hospital, a Michigan acute-care hospital developed a statement of values to address its struggles with employee “back-biting and back stabbing,” low job satisfaction, and loss of customers. After circulating several draft sets of standards to all employees for comment, the hospital issued its Values and Standards of Behavior policy to showcase its new culture, featuring the following paragraphs:

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 agreed with the determination of an administrative law judge (ALJ) that the prohibitions of “negative comments” and “negativity” in paragraphs 11 and 21, respectively, violated Section 8(a)(1) of the NLRA because they restricted employees’ Section 7 rights to engage in protected, concerted activity. The NLRB rejected the hospital’s argument that such terms cannot be found facially unlawful unless there is evidence linking the rules’ restrictions to some protected concerted activity.

Nor did the employees’ involvement in the development of the rules serve as a valid defense in the NLRB’s view. The NLRB found that the rules were unlawfully broad and ambiguous on their face, and that “employees might well endorse an unlawful rule, knowingly or not, but their consent or acquiescence cannot validate the rule.”

Contrary to the ALJ, the NLRB ruled that paragraph 16 also violated Section 8(a)(1) with its equally overbroad requirement that employees represent the hospital “in the community in a positive and professional manner.” The NLRB predicted that the rule would discourage employees from publicly protesting unfair labor practices, or making statements to third parties complaining about their terms and conditions of employment—actions that the hospital may not view as “positive,” but that are protected under federal law.

Board Member Harry I. Johnson III disagreed with his fellow NLRB members on the validity of paragraph 16 and said he would find it lawful. He agreed with the ALJ’s reasoning that the hospital had adopted the rule for the narrower and permissible purposes of encouraging employees to project a high level of professionalism with actual and potential customers and to help improve the hospital’s reputation in the community.

In a footnote, the NLRB observed that the General Counsel had not alleged that the prohibition against “gossip” in paragraph 21 was unlawful, although the ALJ had noted that this paragraph “would arguably be on solid ground” if limited to this prohibition. Chairman Mark Gaston Pearce disagreed with the ALJ’s conclusion on that point.

Ballard Spahr’s Labor and Employment Group routinely assists employers with policy development and review and NLRA compliance. If you have questions or concerns regarding compliance in this context, please contact  the member of the Group with whom you work.


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