In the recent case Hills and Dales General Hospital and Danielle Corlis, 360 HLRB No. 70 (April 1, 2014), the National Labor Relations Board held that an employer’s policy prohibiting “negative comments” and “negativity or gossip” and directing employees to represent the employer “in a positive and professional manner” in the community were unlawful. The panel found that these provisions could reasonably be construed to prohibit NLRA-protected activity.

This recent case involves Hill and Dales General Hospital, a non-union employer that had issued a Values and Standards Behavior Policy in 2005 in response to a “poor work environment.” Later, an employee was terminated for throwing a cup of yogurt at a fellow employee. The discharged employee made comments on Facebook about her termination and hospital personnel. Another employee, Danielle Corlis, posted an offensive Facebook comment in response, and was issued a written warning as a result.

While the Board did not allege that the hospital violated the National Labor Relations Act by terminating the employee based on the yogurt cup incident or by disciplining Corlis, it did find that the hospital’s policies prohibiting “negativity” and encouraging everyone to be positive and professional were unlawful. The Board said that, even if a workplace rule does not explicitly prohibit Section 7 activity, it will still be found to be unlawful if employees would reasonably construe the language to prohibit protected activity.

Citing previous Board decisions, the panel found that the workplace rules in question were overbroad and ambiguous by their own terms, and no extrinsic evidence was needed to establish any actual link between the rules' restrictions and protected concerted activity. The panel also rejected the employer's argument that employee involvement in the development of the workplace rules in question removed any ambiguity regarding the purposes of the rules. The panel found that employee involvement in rule development was no guarantee that the rule would not infringe on Section 7 activity, and that consenting to an unlawful rule does not validate it.

This most recent decision by the Board is not surprising given the string of cases striking down handbook policies over the past few years. Prudent employers can use these decisions as guidance to review their workplace rules and policies and clearly spell out their objectives by using sufficient examples of prohibited conduct so that employees would not reasonably read the rules to prohibit Section 7 activity.