February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) Finds Employer’s Ban on Unfair Criticism Unlawful

A hospital’s code of conduct forbidding comments that stray beyond “fair criticism” and behavior detrimental to “promoting teamwork” were unlawful, NLRB Administrative Law Judge (ALJ) Susan Flynn has ruled. William Beaumont Hospital, Case No. 07-CA-093885 (January 30, 2014).

The hospital’s code of conduct stated, in part:

Conduct on the part of a Beaumont employee or physician that is inappropriate or detrimental to patient care of [sic] Hospital operation or that impedes harmonious interactions and relationships will not be tolerated….Improper conduct or inappropriate behavior or defiance in the following example [sic], which includes but is not limited [sic] to the following:

[4] Verbal comments or physical gestures directed at others exceeds the bounds of fair criticism.

[6] Behavior…that is counter to promoting teamwork.

The ALJ noted the hospital’s code of conduct did not restrict employees’ rights to engage in protected concerted activity under the National Labor Relations Act (“Section 7” activity). She also pointed out that it was not promulgated in response to union activity or applied to restrict Section 7 activities.  Thus, the only issue was whether employees would reasonably construe the code of conduct to prohibit Section 7 activity.

In finding rules 4 and 6 unlawful, the ALJ held they may be reasonably interpreted as prohibiting lawful discussions or complaints that are protected by Section 7 of the NLRA.  Although the employer had legitimate concerns about appropriate staff behavior and a legitimate interest in promulgating work rules to maintain a safe atmosphere in the workplace, those portions of the code of conduct were overbroad and ambiguous, the ALJ ruled, even when read in context.

Jackson Lewis P.C. © 2023National Law Review, Volume IV, Number 66

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