Over the last few years we have written about the increasing relevance of the National Labor Relations Board (“NLRB”) for non-union employers. Earlier this month, the NLRB issued two more opinions that are directly applicable to the non-union workplace. In both decisions, the NLRB found that language in the employer’s policies interfered with employees’ Section 7 rights. Section 7 protects an employee’s right to participate in concerted activities for the purpose of mutual aid and protection. Section 7 is much broader than protection for joining a union and engaging in collective activity with and through union representation.
In Hills and Dales General Hospital, the employer’s Values and Standards of Behavior policy, included the following paragraphs:
We will not make negative comments about our fellow team members and will take every opportunity to speak well of each other.
We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.
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 employer had developed this policy to address a negative work environment that had developed among employees and that had led to low employee morale and the loss of customers.
Similarly in First Transit, Inc., the employer had published an employee handbook banning “[d]iscourteous or inappropriate attitude or behavior toward passengers, other employees, or members of the public.”
In both cases, the NLRB found that the employer policies could reasonably be interpreted by employees to interfere with their Section 7 right to engage in concerted activities for mutual aid and protection. For example, the NLRB found that the hospital’s rule against negativity could reasonably be interpreted by an employee to prevent the employee from making negative statements about their terms and conditions of employment to a third party—a right clearly protected by Section 7. These two decisions continue the NLRB’s trend of continued scrutiny of policies that apply in the non-union setting.
What Employers Should Do
If your company has handbook language, written policies or workplace rules that speak in broad terms about positive communication, lack of negativity, courtesy or unprofessionalism, consider how these NLRB opinions may apply to the relevant language. It is plain that the NLRB is adopting a very expansive view about what language may reasonably be interpreted to impede the exercise of Section 7 rights. In some cases, it may be advisable to both rewrite the rule or policy in a narrow fashion and also add “savings” language that calls out how the rule or policy is not intended to interfere with any employee’s exercise of any legal rights.