Last month’s EmployNews reported a decision from the National Labor Relations Board, Copper River of Boiling Springs, LLC, in which the Board upheld use by an employer of a policy that prohibits expressions of negativity toward customers and coworkers. Earlier this month, a different NLRB panel reached the opposite conclusion in a similar case involving a non-unionized employer’s policies and procedures.
 
In Hills and Dales General Hosp., employees challenged three employer policies: (1) a prohibition against “negative comments about our fellow team members”; (2) a requirement that employees “represent [the employer] in the community in a positive and professional manner at every opportunity”; and (3) a requirement that employees “will not engage in or listen to negativity or gossip.” The plaintiffs contended that all three requirements constitute unfair labor practices because they interfere with employees’ ability to organize and to engage in concerted activity.
 
In response, the employer sought to introduce evidence regarding the adoption and enforcement of the policies. It contended that they were adopted with employee involvement and recommendations, and that there was no indication that the policies were ever used in any manner that would have a chilling effect on concerted activity. The NLRB panel refused to consider this extraneous evidence, concluding that on their face, all three policies were overbroad and ambiguous to the extent that they violate Section 8(a)(1) of the NLRA.
 
The Board concluded that the polices could, on their face, be read by employees to threaten disciplinary action if they raised complaints within or outside of the hospital with regard to the terms and conditions of their employment. This language violates the NLRA regardless of the employer’s motivations or actual use of the policies.
 
It is very difficult to reconcile this decision with that of the Copper River panel. At the present time, the fate of these cases appears to depend on the composition of the NLRB panel that hears the cases. Absent guidance from the full Board and eventually federal courts, employers have little assurance over the legality of these types of employee behavioral expectation policies.