By:  Ashley K. Laken, Esq.

On January 31, NLRB Administrative Law Judge Susan Flynn ruled that two provisions of a non-unionized hospital’s code of conduct unlawfully interfered with employees’ Section 7 rights.  The ALJ also deemed unlawful a hospital official’s oral instruction to an employee to not discuss with others on staff the hospital’s pending investigation of allegations that the employee had bullied her coworkers.  Case No. 07-CA-093885.

 The case arose out of the firing of two hospital employees for exhibiting intimidating and bullying behavior toward their coworkers.  The complaint alleged that the employees had been fired for engaging in protected concerted activity (in particular, complaining to coworkers about working conditions).  During the trial, the NLRB General Counsel orally amended the complaint to include allegations that the hospital’s code of conduct and the hospital official’s non-discussion instruction unlawfully interfered with employees’ Section 7 rights.   

 Although the ALJ upheld the terminations of the two employees, she did find unlawful two provisions of the code of conduct and the non-discussion instruction.  The two unlawful code provisions prohibited the following conduct: 

  • Verbal comments or physical gestures directed at others that exceed the bounds of fair criticism.
  • Behavior that is disruptive to maintaining a safe and healing environment or that is counter to promoting teamwork.

The ALJ found that although no employees had been disciplined for violations of these code provisions, the provisions could reasonably chill employees’ exercise of their Section 7 rights and were therefore unlawful.  The ALJ reasoned that “exceed the bounds of fair criticism” and “counter to promoting teamwork” could be interpreted by employees as prohibiting discussions or complaints that are protected by Section 7.  The ALJ also noted that although the hospital had legitimate concerns regarding appropriate staff behavior and had a legitimate interest in promulgating work rules to try to maintain a safe atmosphere in the workplace, the two provisions were overbroad and ambiguous.     

 With respect to the non-discussion instruction, the ALJ observed that the Board has held that to justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights.  The ALJ found that the hospital official’s stated reason for the instruction (her concern that such discussions may have resulted in additional allegations of intimidation) was insufficient.

 The ALJ therefore recommended that the employer be ordered to rescind the two code of conduct provisions and to post, for 60 days in all places where notices to employees are customarily posted, a notice informing employees that the code of conduct provisions at issue would not be maintained and that federal law gives employees the right to form, join or assist a union. 

 The decision highlights the Board’s ever-increasing fixation on both union and non-union employers’ workplace rules.  Employers concerned about potential legal challenges may want to revisit their handbooks and explore the possibility of revising policies that may be problematic.  If you have concerns that your code of conduct or handbook provisions might not withstand Board scrutiny, don’t hesitate to contact your favorite Seyfarth attorney.