In its continuing trend to foray into non-union workplaces, the National Labor Relations Board (“NLRB” or the “Board”) struck down another neutral and common employment policy. On April 1, 2014, in Hills and Dales Gen. Hosp., 360 N.L.R.B. No. 70, the Board held that a portion of a Michigan Hospital’s “Values and Standards of Behavior” policy was unlawful and ordered the Hospital to revise or rescind the offending sections. The Hospital’s rules did not explicitly restrict protected employee activity nor was there any evidence that the Hospital made statements or engaged in conduct that linked the rules to protected employee activity. Nonetheless, the Board found portions of the Policy unlawful reasoning that employees could reasonably construe the language as prohibiting protected activity - employees’ right to engage in concerted activity for their mutual aid and protection.
The Policy Language At Issue:
By way of background, in 2005, the Hospital was experiencing employee moral issues as a result of failed inter-department cooperation, poor employee relationships, and “back stabbing.” This troubled work environment was also affecting the Hospital’s ability to obtain patients. In an attempt to improve the culture, the Hospital assembled employee engagement teams to address these concerns. The Policy at issue was drafted by one such team. Prior to publishing the final version of the Policy, the various drafts were distributed to all employees for feedback and were revised based on the feedback. The final version included the following rules, which applied to all employees regardless of their job or level:
" Given the NLRB's tenacity to find neutral policies concerning an array of issues from Social Media to Employer Values unlawful, all Employers should have their policies reviewed by legal counsel prior to publication and implementation."
• “Teamwork ....
Rule 11. We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other ... .
Rule 16. We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.
• Attitude ....
Rule 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 Board’s Decision:
An administrative law judge (“ALJ”) held that Rules 11 and 21 were unlawful finding that employees would reasonably understand the bans on negative comments as restricting their rights under federal labor law to speak openly about workplace concerns. The ALJ, however, ruled that the Hospital did not violate the Act by requiring employees to act in a “positive and professional manner” in public – Rule 16. The Hospital appealed the decision to the Board arguing that the negativity proscriptions in Rules 11 and 21 could not be held unlawful unless the Board found a link between the rules and employees’ exercise of protected activity and defended the rules on the grounds that employees participated in drafting them. The Board rejected both arguments. With respect to the former, the Board, in essence, looked at the language in a vacuum and made a determination of its lawfulness without regard to employee sentiment or employer action. A unanimous Board affirmed the ALJ’s rulings, findings and conclusions with respect to Rules 11 and 21. Unlike the ALJ, however, a split Board also found that Rule 16 was unlawful under similar reasoning.
What’s An Employer to Do?
Given the NLRB’s tenacity to find neutral policies concerning an array of issues from Social Media to Employer Values unlawful, all Employers should have their policies reviewed by legal counsel prior to publication and implementation. This is true even where there is no evidence that the policy may interfere with Section 7 rights and is especially important considering the Board’s conflicting opinions and advice on this matter.