Hunton Employment & Labor Perspectives

A recent National Labor Relations Board decision found that particular provisions of an employer’s Code of Conduct unlawfully discouraged employees from engaging in Section 7 Activity.

Section 7 of the National Labor Relations Act protects an employees’ rights to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  The Act further makes it unlawful for an employer to interfere with these rights.  What qualifies as employer interference is frequently considered by both the Board and courts.

Earlier this month, the Board considered provisions in a Code of Conduct that prohibited certain comments, gestures, and actions by employees.  The Board upheld the administrative law judge’s determination that prohibitions on comments and gestures “that exceed the bounds of fair criticism,”  and “behavior that is .. . counter productive to promoting teamwork” were unlawful.

However, the Board went further and found that a provision preventing “negative or disparaging comments about the . . . professional capabilities of an employee or physician to employees, physicians, patients, or visitors” was also unlawful.  This provision would “reasonably be construed to prohibit expressions of concern over working conditions.”

The Board also took issue with the Code of Conduct’s introductory language that prohibited conduct that “impedes harmonious interactions and relationships.”  Because of the broad and imprecise nature of the clause, employees would reasonably construe the rule to prohibit Section 7 activity.