Employees Have the Right to Engage in Negativity According to NLRB Ruling

On April 1, 2014, the National Labor Relations Board (NLRB) issued an order that an employer’s rules prohibiting employees from making negative comments about fellow employees and requiring employees to positively present the employer violated the National Labor Relations Act (NLRA).  Hills and Dales General Hospital in Cass City, Michigan had adopted a “Values and Standards of Behavior” policy, which included three seemingly innocuous rules the NLRB held were illegal:

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11.    We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.

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16.    We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.

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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 NLRB held that each of these rules constituted an over-broad restriction on employee rights protected under Section 7 of the NLRA.  Section 7 protects employees’ rights to engage in “concerted activities” for the purpose of collective bargaining or other “mutual aid or protection.”  Concerted activities generally require two or more employees acting together to improve wages or working conditions, but the action of just one employee may be considered “concerted” if the employee either involves coworkers before acting, or acts on behalf of other employees.

The hospital had enacted the policy in response to low employee morale, which was causing employees to seek work elsewhere and leading patients to seek health care in other hospitals.  No one presented a claim that the hospital had disciplined any employees for violating the rules.  Had that occurred, the remedies under the NLRA would have required the hospital to reverse the disciplinary action against the employee and "make whole" the employee for any economic losses.  Instead, the NLRB merely ordered the hospital to rescind the rules.

The guidance employers should take from this ruling, which is only the latest ruling of this kind from the NLRB, is that the NLRB will carefully review any employment policies brought to its attention that could limit protected employee activity.  Despite legitimate business purposes that might lead to an policy or rule affecting employees, employers should examine their employee handbooks and revise any policies that might be construed to limit complaints touching on issues such as employee compensation or working conditions.