NRLB Says No to “No Negativity”


Forbid employees from ever bad-mouthing your company? This month’s decision by the U.S. National Labor Relations Board (NRLB) means you’d better think again.

Three Standards Challenged

At issue were three parts of an organization’s Values and Standards of Behavior:

  • Employees will not make “negative comments about our fellow team members,” including coworkers and managers (paragraph 11)
  • Employees will “represent [the organization] in the community in a positive and professional manner in every opportunity” (paragraph 16) and
  • Employees “will not engage in or listen to negativity or gossip.” (paragraph 21)

Section 7

Employees shall have the right 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, and shall also have the right to refrain from any or all such activities.

– National Labor Relations Act

A judge had earlier determined that two of these three work rules, paragraphs 11 and 21, violated Section 8(a)(1) of the National Labor Relations Act because employees might reasonably understand them to prohibit legally protected concerted activity under Section 7.

Third Standard Rejected

A later appeal panel gave thumbs down to all three work rules, finding them to be unfair labor practices under Section 8(a)(1).

The panel viewed the requirement that employees “represent [their employer] in the community in a positive and professional manner” as overbroad and ambiguous.


Section 8.

(a) It shall be an unfair labor practice for an employer–

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [section 157 of this title];

– National Labor Relations Act

Their position was that it could also serve to discourage employees from engaging in protected public protests of unfair labor practices or from making statements to third parties protesting their terms and conditions of employment— activity that would be unlikely to be seen as “positive” by their employer but that are legally protected by Section 7.

The panel ordered the employer to revise or rescind the offensive portions of its Values and Standards of Behavior Policy by reprinting the Policy without the unlawful language. (Or, to save the expense of reprinting, the company can supply its employees with adhesive handbook inserts that correct or cover the unlawfully broad rules, stating the unlawful rules have been rescinded, until it republishes the policy without the unlawful provisions.) Very tidy.

About Ann Longmore

Ann is Executive Vice President of Willis' Executive Risks practice. Based in New York, she has been with the compa…
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