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On April Fools' Day 2014, the Board issued a decision finding the following handbook policies unlawful:
…We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other…We will represent [the Company] in the community in a positive and professional manner in every opportunity…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.
Continuing a line of decisions stretching back several years, but issuing with increasing frequency lately, the Board found that those statements are unlawful as written because employees may "reasonably" believe the policies prohibit the employees from engaging in activity protected by the NLRA, such as criticism of the employer or its policies, supervisors, managers or employees.  The decision is Hills and Dales General Hospital, 360 NLRB No. 70.

The hospital employer defended the policies as having been developed in the context of dealing with employee morale issues that had begun affecting the hospital's business.  The ALJ found:
In 2005, the Hospital was struggling with a poor work environment.  Among other problems, Hospital departments were not cooperating with each other, and employee relationships were suffering due to "back-biting and back stabbing." As a result, employee satisfaction was low, employees were looking for other job opportunities (outside of the Hospital), and patients were seeking health care in other hospitals.
In response to that culture, the hospital developed "Values and Standards," including the challenged statements set out above, following meetings and collaboration with teams of employees to work on improving the culture of the workplace.

Sometime after the new standards were published, an employee was terminated for throwing a cup of yogurt at a fellow employee, and the terminated employee made comments on Facebook about her termination and apparently about hospital personnel.  Another employee, Corlis, posted a Facebook comment in response stating:  "Holy shit rock on [S!]. Way to talk about the douchebags you used to work with. I LOVE IT!!!" Corlis was issued a written warning for this Facebook post. 

The Board did not allege that the hospital violated the Act by terminating the employee based on the yogurt cup incident or by disciplining Corlis based on her Facebook posting. Only the maintenance of the quoted policies was found to be unlawful.

Employers should be confused by this decision—terminating an employee for behavior disrespectful of fellow employees, and issuing discipline to another employee for making public comments that may sully the image of the employer, is not unlawful, but a policy advising employees that disrespectful, negative behavior is prohibited and may lead to discipline is an unfair labor practice. 

Contrary to what almost everyone would agree is good labor relations practice, given the difficulty of writing a rule that will pass muster with the Board, employers may consider if they will be better off not having a written "good behavior" policy at all, but merely taking corrective action whenever employees engage in rude, boorish behavior.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

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