“Be Nice” is acceptable in the sand box, but perhaps not in an employer handbook, according to a recent National Labor Relations Board (NLRB) ruling. See Hills and Dales General Hospital, 360 NLRB No. 70 (April 1, 2014 – it was not an April Fool’s joke).
In the matter before the NLRB, the employer hospital issued employee standards of conduct that prohibited “gossip” or “negative comments” about fellow team members and required that the employee represent the employer in a “positive and professional manner.” These seemingly innocuous rules of basic social interaction did not survive the NLRB scrutiny because they could, according to the NLRB three-member majority, be construed by employees as interfering with their National Labor Relations Act (NLRA) rights. Under Section 7 of the NLRA, employees have rights to engage in protected concerted activities for their mutual aid or protection relating to the terms and conditions of employment. The NLRB held the employer’s “be nice” rules could inhibit criticism among employees of management and attempts to address terms and conditions of employment. There was a strong dissent. The ruling affects all employers, not just collective bargaining situations.
Takeaway: The NLRA’s protection of concerted activities related to the terms and conditions of employment can work unexpected results. When reviewing handbook provisions and employer policies on employee communication and interaction, this protection needs to be part of an employer’s review checklist. This is even more the case if the employer needs to take disciplinary or corrective action. It is a good idea to work with legal counsel to make sure there is no reasonable chance of interfering with NLRA concerted protected activities when drafting or enforcing policies requiring employees to “be nice.”
