NLRB Strikes Down Hospital's Rule Prohibiting Negativity and Gossip Among Employees

by Downs Rachlin Martin PLLC

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Downs Rachlin Martin PLLC | Attorney Advertising

Written by:

Downs Rachlin Martin PLLC

Downs Rachlin Martin PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.