Don’t Sass Me: Ban on “Negative Attitude” Held Lawful by the NLRB

By a 2-1 margin, the two new Republican members of the National Labor Relations Board (NLRB), Philip Miscimarra and Harry Johnson, III, outvoted dissenting Chairman Mark Pearce and held that an employer rule prohibiting a “negative attitude” did not violate the National Labor Relations Act (NLRA or Act). Copper River of Boiling Springs, LLC, Cases 10-CA-085934, 10-CA-088882 and 10-CA-087199 (Feb. 28, 2014).

Copper River of Boiling Springs, a restaurant, had a rule in its employee manual that prohibited the following:

Insubordination to a manager or lack of respect and cooperation with fellow employees or guests. This includes displaying a negative attitude that is disruptive to other staff or has a negative impact on guests.

The Board’s General Counsel argued that the rule clearly encompassed employees’ concerted communications or conduct protesting terms and conditions of employment in violation of Section 8(a)(1) of the Act. Reviewing established case law, the Administrative Law Judge (ALJ) stated that a work rule that explicitly restricts the exercise of rights under Section 7 of the Act to engage in protected concerted activity is unlawful on its face. However, if the rule does not explicitly restrict Section 7 rights, in order to prove its illegality, the government must establish one of the following: (1) the employees reasonably would understand the rule to prohibit Section 7 activity; (2) the employer promulgated the rule in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

The government did not argue that the work rule met either the second or third criteria, but instead contended that employees reasonably would understand the rule to limit their right to engage in activities the Act protects. The ALJ concluded that the rule did not chill the exercise of employees’ Section 7 rights, and therefore that it did not violate Section 8(a)(1) of the Act.

On appeal, the majority agreed with the ALJ, reasoning that the relevant language “limits the rule to unprotected conduct that would interfere with the [restaurant’s] legitimate business concerns.”

In dissent, Chairman Pearce asserted that “an employee would reasonably interpret a ‘negative attitude’ as one that is critical of the employer, and that the rule would thereby reasonably inhibit employees from discussing controversial topics, including terms and conditions of employment.”

The Copper River case is encouraging for employers, because it permits them in the right circumstances to issue and enforce reasonable workplace rules that protect legitimate business interests in a lawful manner.

If you have any questions about the Copper River case, please contact the authors or any other member of the Arent Fox Labor & Employment group.