*By Patrick J. Hoban
In March 2011, a hospital issued an employee a written disciplinary
warning for posting the following on Facebook: “Holy shit rock on [S!].
Way to talk about the douchebags you used to work with. I LOVE IT!!” In
response, the employee in the non-union facility filed an unfair labor
practice charge with the National Labor Relations Board (“NLRB”). On
April 1, 2014, the NLRB upheld an administrative law judge’s decision
and invalidated the employee handbook provision under which the
hospital disciplined the employee. Hills & Dales General Hospital,
360 NLRB No. 70 (April 1, 2014). In another decision issued on April
2, 2014, the NLRB invalidated a handbook provision which prohibited
“discourteous or inappropriate attitude or behavior to passengers, other
employees, or members of the public.” First Transit, Inc,
360 NLRB No. 72 (April 2, 2014). In both decisions, the NLRB found each
employer violated Section 8(a)(1) of the National Labor Relations Act
(“NLRA”) for unlawfully interfering with employee rights under the
NLRA. These decisions again demonstrate that employers without unions
or active union organizing are subject to the NLRA and that the NLRB
will parse even the clearest and most reasonable employee handbook or
work rule language to find a violation.
In Hills & Dales General Hospital, the
non-unionized employer disciplined the employee for the offensive
Facebook posting in violation of a handbook provision requiring
employees to “represent Hills & Dales in the community in a positive
and professional manner in every opportunity.” According to the NLRB,
employees would reasonably conclude this paragraph prevented them from
making negative remarks about the hospital in public. The NLRB
explained that a rule requiring employees to represent the hospital in a
“positive and ethical” manner would not have run afoul of the
NLRA. However, the NLRB found that the word “professional” is a “broad
and flexible concept as applied to employee behavior” and its inclusion
in the provision rendered it unlawful on its face (although the NLRB did
not address whether the discipline itself was unlawful).
In First Transit, where there was no discipline and
some facility employees were unionized, the NLRB found numerous
handbook provisions prohibiting theft, “poor work habits,” and “profane
or abusive language where the language used is uncivil, insulting,
contemptuous, vicious, or malicious” lawful. However, the NLRB found the
provision prohibiting “discourteous or inappropriate” behavior
unlawfully overbroad as, the NLRB concluded, employees would reasonably
conclude it prohibited them from communicating about their employment.
The handbook at issue in First Transit included a “Freedom of
Association” provision affirming employee rights to organize a union and
the employer’s pledge not to interfere with such activity. The employer
argued that this language made clear to employees that the handbook
terms did not restrict NLRA rights. However, when reviewing the Freedom
of Association policy, the NLRB determined its placement was neither
“prominent nor proximate” to the facially unlawful rules. In short, the
NLRB concluded that employees could not reasonably be expected to apply
the disclaimer to every policy in the 73-page handbook.
Although in First Transit the NLRB upheld a policy
prohibiting “profane or abusive” language, both decisions highlight the
wide range of employee speech the NLRB considers protected under the
NLRA. Specifically, First Transit invalidated the prohibition
on “discourteous and inappropriate” behavior because “no wording
provide[d] a context limiting the rule to legitimate business concerns
such as uncooperation [sic] with supervisors.” In Hills & Dales General Hospital,
the NLRB invalidated the provision that it concluded prevented
employees from making “negative comments about . . . team members”
because that definition included managers.
The Hills & Dales General Hospital and First Transit decisions
are the latest in the NLRB’s assertion of authority as an
“Editor-in-Chief” of employer policies. In 2010, the NLRB found
probable cause to issue a complaint when an employer disciplined an
employee for calling her supervisor a “scumbag” on Facebook. American Medical Response of Connecticut, Inc.,
34-CA-12576. In an Advice Memorandum concerning the case, the NLRB’s
General Council concluded that an employee calling a supervisor a
“scumbag” was protected activity because the NLRB “ha[d] found more
egregious name-calling protected.”
These recent NLRB decisions demonstrate that employers must
carefully review employee handbooks and workplace policies with an eye
toward the aggressive parsing of the NLRB. Additionally, any employer,
unionized or not, can face charges based on employment policies.
Finally, while most reasonable people can agree that an employee who
refers to co-workers as “douchebags” or to supervisors as “scumbags”
has a damaging effect on the workplace, the NLRB may find that activity
protected. As a result, all employers should carefully consider these
issues and consult counsel before disciplining employees for similar
misconduct.
*Patrick J. Hoban,
an OSBA Certified Specialist in Labor and Employment Law, practices in
all areas of private and public sector labor relations. For more
information about the NLRB decision or labor & employment law,
please contact Pat (pjh@zrlaw.com) at 216.696.4441.
