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The New “Value” Proposition: NLRB Yet Again Rules the Reasonable Unreasonable

Posted in Highlight, Human Resources (HR) Compliance, Labor Law & NRLB, Social Media

I sound like a broken record, but once again, the NLRB is striking down reasonable rules as unreasonable. 

My colleague, Gary Starr (as always, read his bio here), today shares a recent case from the NLRB that found that a “Values and Standards of Behavior Policy” of one employer — something that you might think is entirely devoid of labor law implications — is indeed in violation of federal labor law. 

And so, if you “value” compliance with labor laws, you’ll want to be sure to read on….

Suppose your office is more like “The Office” television show – filled with inter-department back-biting and general lack of cooperation.

Besides realizing that hiring Michael Scott to run the place isn’t the best idea, what do you do?

Hills and Dales General Hospital decided it had to change its culture. It set out to develop standards of behavior that all employees would embrace. It solicited the opinions of all employees on customer service, respect, teamwork, attitude, continuous improvement, and fun.

Once its new Values and Standards of Behavior Policy was completed, every employee was given a copy and it was posted in the main lobby.

And it seemed to be working.

The Hospital began to see an improvement in how employees treated each other, how patients were treated and how departments worked with each other.

And they lived happily ever after, right?

Well, not exactly.  Then an unfair labor practice was filed challenging three of the more than 21 provisions of the Values Policy. Those provisions were:

  • Teamwork – 11. “We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.”
  • Teamwork -16. “We will represent the Hospital in the community in a positive and professional manner in every opportunity.”
  • Attitude – 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 National Labor Relations Board (“Board”) earlier this month found that the prohibitions on “negative comments” in Section 11 and reference to “negativity” in Section 21 were unlawful because these rules could prohibit employees from discussing their terms and conditions of employment or sharing their complaints about their supervisors with their co-workers.

The Board found that Sections 11 and 21 of the Values Policy would have a chilling impact on employees and discourage them from exercising their rights as the implicit threat of discipline for being critical of management violates the law.

The effort to present the Hospital in the community in a positive and professional manner did not fare any better.

Despite its effort to improve its reputation and have employees exhibit high standards of professionalism in their dealings with “customers” at every opportunity, the Board viewed Section 16 as overbroad and ambiguous.  The Board found that this section could proscribe employees from making public statements that might not be seen as positive.

For example the language could be seen as prohibiting public protests over any Hospitalviolation of labor laws or could bar employees from making statements protesting their wages, benefits or working conditions.

As a result, the Hospital was ordered to retract these sections of the Values Policy and must delete them from all sources. The Hospital and other employers seeking to address internal conflicts among employees and departments and public perceptions of their business are left to create new behavior standards with more details or with clear statements that their policies are not intended to violate employee rights under the National Labor Relations Act.

Because Connecticut protects its free speech in both public and private work places, employers must be careful not to infringe those rights as well.

Perhaps it’s time to to revise my grandmother’s admonition that if you don’t have anything nice to say do not say anything at all to include “except as protected by law.”

The NLRB has been making it clear of late that enforcing workplace harmony and requiring employees to present the employer in a positive and professional light infringes employee rights. Thus if you want change your company’s culture, you need to navigate around these pitfalls and make clear that such efforts are not intended to infringe employee rights.

Oh, what would Michael Scott think of this!