A National Labor Relations Board (NLRB) administrative law judge recently found two code of conduct rules that prohibited comments exceeding “the bounds of fair criticism” and behavior that “is counter to promoting teamwork” violated the National Labor Relations Act (NLRA). Click here for copy of the case. The case arose after the William Beaumont Hospital terminated two senior employees, a nurse and a surgical technician, for “negative, intimidating and bullying behavior” in violation of the code of conduct. The fired employees had made negative remarks about recently hired nurses and generally acted rude and condescending to them. The bullying conduct became so bad that one of the newer nurses quit. The General Counsel for the NLRB contended that the hospital fired the employees for engaging in protected concerted activity because the fired employees had also made comments about understaffing at the hospital and expressed concern that senior nurses might lose their licenses because of the inexperienced newer nurses. The General Counsel also attacked the hospital’s Code of Conduct, arguing the rules could be reasonably construed as prohibiting employees from engaging in lawful, protected concerted activities. In relevant part, the Code of Conduct prohibited “[v]erbal comments or physical gestures directed at others that exceed the bounds of fair criticism” and “[b]ehavior that is disruptive to maintaining a safe and healing environment or that is counter to promoting teamwork”.
The administrative law judge ultimately found that the employee terminations were lawful. However, the judge found that the rules forbidding comments that “exceed the bounds of fair criticism” and behavior that is “counter to promoting teamwork” were over broad and could reasonably be interpreted as prohibiting lawful discussions or complaints about terms and conditions of employment. The NLRB judge concluded that “[a]lthough the respondent has legitimate concerns regarding appropriate staff behavior, and has a legitimate interest in promulgating work rules to try to maintain a safe atmosphere in the workplace, those portions of the code are overbroad and ambiguous.”
This is not the end of the story. The case will now go to NLRB and can be appealed to federal court if the NLRB adopts the administrative law judge’s recommended order. Employers should stay tuned to see if the NLRB concurs with the administrative law judge that the reach of the NLRA extends to workplace civility codes. In the meantime, employers should review with counsel their workplace policies to ensure that their codes of conduct are narrowly drafted to prohibit specific conduct such as discriminatory remarks, harassment, threats or violence, and similar unlawful or inappropriate conduct without infringing on protected activity under the NLRA.
