As readers of this blog know, the NLRB is quite interested in what the employee’s handbook or policy manual says.  A recent decision from the NLRB underscores this interest.

A hospital published a “Values and Standards of Behavior” policy that, among other things, contained three different rules:

  • A rule prohibiting employees from making “negative comments about our fellow team members”;
  • A rule prohibiting employees in engaging in or listening to “negativity or gossip”; and
  •  A rule that required employees to “represent [the hospital] in the community in a positive and professional manner in every opportunity.”

The hospital asked employees to sign poster-sized copies of the policy, which were framed and placed in the lobby so that patients could see them. The hospital also asked employees to sign individual copies of the policy, which were placed into employees’ personnel files, and included the policy in its human resources policy manual. The hospital adopted the policy after obtaining employee involvement in the development of the rules.

The NLRB, in a 3-0 decision, held that the first two rules were unlawful.  The fact that employees were involved in their development did not protect the rule from a challenge that it was an unlawfully over broad and ambiguous prohibition on employee conduct.  Employees could reasonably construe the rules to prohibit protected, concerted activity.

The NLRB also found that the third rule was unlawful, but over the dissent Member Johnson (R).  The majority reasoned that the third rule was just as overbroad and ambiguous as the first two rules.  Employees could reasonably view the rule as preventing them from engaging in any public activity or statements that are not “positive” towards the hospital on work-related matters. Thus, the majority reasoned that the rule would discourage employees from engaging in public protests of unfair labor practices or from making statements to third-parties protesting their terms and conditions of employment.  Moreover, the context of the rule in this case didn’t provide any limitation on how broadly an employee could read the rule. 

For the labor professional, the case is a good reminder of the importance of carefully reviewing the content of your handbook with labor law counsel.  Moreover, as prior posts have emphasized, this case demonstrates that the context in which any particular rule is placed can determine its legality.