Seyfarth Synopsis: Board panel finds hospital’s work rule prohibiting employees from engaging in offensive conduct to be unlawful.

In Valley Health System, LLC d/b/a Spring Valley Hosp. Med. Ctr., 363 NLRB No. 178 (May 5, 2016), a unanimous Board panel (Pearce, Hirozawa, McFerran) found that a hospital acted unlawfully by maintaining certain work rules, including a rule prohibiting employees from engaging in conduct that “brings discredit on the System or Facility” or that is “offensive…to fellow employees,” and a rule prohibiting employees from speaking negatively about a coworker or the hospital. In reversing the Administrative Law Judge’s finding that prohibiting “offensive” conduct was not unlawful, the Board panel noted that protected Section 7 activity often involves “controversy, blunt criticisms, and disagreements that may well be deemed ‘offensive’ by management or fellow employees.” The Board panel further stated that the rule was not accompanied by any descriptive language or a list of other forms of misconduct that would help employees understand what type of conduct the rule intended to prohibit.

The underlying unfair labor practice charges related to the hospital’s maintenance of a policy requiring arbitration of employee disputes and a rule requiring employees to speak and communicate only in English with other employees, staff, customers, and visitors in all work and patient-access areas. While not part of the Board panel’s discussion, the Administrative Law Judge’s order affirmed by the Board strikes down the hospital’s English-only rule. In the underlying decision, the Administrative Law Judge found that the work rule violated the Act because it would lead non-native English speaking employees to reasonably believe that they could not engage in concerted activity. The Administrative Law Judge reached this conclusion even though the hospital’s “English Only” work rule complied with EEOC guidance. The Administrative Law Judge’s decision indicates that an employer may be faced with a situation where maintaining an English-only rule that is lawful under EEOC guidance may nonetheless violate the National Labor Relations Act.

While Member Miscimarra was not involved in this case, it comes only weeks after his scathing dissent attacking the Board’s standard for evaluating workplace rules in a decision involving a Michigan hospital. Following the Board’s recent string of cases on employer work rules, employers should consider reviewing their current policies and work rules to ensure that they are narrowly tailored to prevent potential unfair labor practice charges and costly litigation.