Last week, in Copper River of Boiling Springs, LLC, a three-member panel of the National Labor Relations Board upheld a South Carolina restaurant’s negative attitude rule by a 2-1 vote. The employee handbook provision prohibited “[i]nsubordination to a manager or lack of respect and cooperation with fellow employees or guests,” and specified that “[t]his includes displaying a negative attitude that is disruptive to other staff or has a negative impact on guests.” The restaurant relied upon the rule in discharging an employee after management received reports that the employee used profanity to disparage the restaurant in conversations with its customers.

Republican Members Miscimarra and Johnson affirmed the Administrative Law Judge’s determination that the rule only prohibits legally unprotected employee conduct that interferes with the restaurant’s legitimate business concerns, relying upon the NLRB’s 2011 decision in Hyundai America. Chairman Pearce, who also dissented in Hyundai America, filed a dissent, arguing that the rule violates employees’ Section 7 rights because it inhibits employees from discussing their own terms and conditions of employment, including making comments which are critical of the employer.

This decision illustrates that employers can win before the NLRB, but employers who maintain a similar rule should proceed cautiously. NLRB panels are randomly selected, and a panel that did not include both Republican members likely would have found the negative attitude rule to violate employees’ Section 7 rights. This decision appears to directly conflict with previous NLRB decisions, including the 2012 decision in Karl Knauz Motors, Inc., upon which we have previously reported. In that case, the three-member panel, which also included Chairman Pearce, struck down a similar employee handbook rule that required courteous behavior and prohibited employees from engaging in disrespectful behavior or using language that would damage the employer’s reputation.

As we reported earlier this week, the NLRB’s aggressive enforcement policy continues to include close scrutiny of employee handbooks. Employers who maintain “negative attitude” or “disrespectful behavior” rules may want to talk with their legal counsel to determine which side of the line their rules fall: lawful under the Copper River/Hyundai cases, or unlawful under Karl Knauz Motors?