Like many employers, Hills and Dales General Hospital’s employee policies included provisions prohibiting “negative comments” about fellow team members, and precluded engaging in “negativity or gossip.” The policies further included a requirement to represent the hospital within the community “in a positive and professional manner in every opportunity.”
Recently, a three-member panel of the National Labor Relations Board (NLRB) determined that those provisions were unlawful, because the language could be construed as keeping employees from exercising their rights under Section 7 of the National Labor Relations Act (NLRA). Hills and Dales General Hospital, 360 N.L.R.B. No. 70 (April 1, 2014).
Section 7 protects the right of employees to engage in “concerted activities” with each other for collective bargaining purposes or in efforts to improve working conditions and terms of employment.
NLRA precedent holds that if a work rule does not explicitly restrict Section 7 activity – which work rules rarely do – it still could be found unlawful if employees reasonably would construe the rule to prohibit concerted activity. The current NLRB has set the bar for that level of activity much lower than in the past, which has led to a recent increase in decisions in which employers have been asked to modify or rescind policies found to have violated Section 7.
In this case, the Board determined that the policy provisions at issue could reasonably be viewed by employees as proscribing them from engaging in activity or making public statements not perceived as “positive” toward the hospital on work-related matters. This could, according to the Board, “discourage employees from engaging in protected public protests of unfair labor practices, or from making statements to third parties protecting their terms and conditions of employment” – activities protected by Section 7.
As a penalty for this, the hospital was ordered to rescind or reword the policies. In addition, however, the hospital was required to post a “Notice to Employees” which included language informing employees of their right to “Form, join, or assist a union” and to choose representatives to bargain with the hospital.
Of particular interest is the fact that this Notice to Employees is essentially the same language required by a proposed rule that was struck down by two separate federal appellate circuits last year. That rule would have required most U.S private-sector employers — including most of the 6 million small businesses in the U.S. — to post a written notice of employee rights regarding unionization, including specific language informing individuals of their rights not to unionize, with penalties attached for employers who failed to post the notice under the conditions required by the NLRB. However, under the proposed rule, the Notice would have been required whether or not an unfair labor practice charge had been filed against the employer.
Both unionized and non-unionized employers should stay abreast of the NLRB decisions on the issue of work policy language, and should review and update employee handbooks and manuals to assure that the language used in those policies is specific and focused, and cannot be interpreted as discouraging employees from public discussion of unfair labor practices.