In a February 28, 2014 decision, the National Labor Relations Board (“NLRB”) found that a South Carolina restaurant did not violate the National Labor Relations Act (“NLRA”) when it implemented a rule prohibiting employees from “displaying a negative attitude” when interacting with coworkers and customers. Copper River of Boiling Springs, LLC, 360 N.L.R.B. No. 60 (2014).
The Board’s Republican members, Philip A. Miscimarra and Harry I. Johnson, determined that Copper River did not violate Section 8(a)(1) of the NLRA when it included the “negative attitude” rule in its employee handbook. According to the decision, the rule prohibits only legally unprotected conduct that is harmful to the employer’s legitimate business concerns. Specifically, the handbook contained language prohibiting “[i]nsubordination to a manager or lack of respect and cooperation with fellow employees or guests,” including, “displaying a negative attitude that is disruptive to other staff or has a negative impact on guests.”
Under Section 8(a)(1) of the of the NLRA, a workplace rule which “explicitly restricts” an employee’s exercise of protected concerted activity is unlawful. Further, a workplace rule that does not explicitly limit the right to engage in protected activity is illegal if employees reasonably would understand the rule to prohibit Section 7 activity; the employer promulgated the rule in response to union activity; or the rule is applied to restrict Section 7 rights. In Copper River, the issue was whether employees would construe the negative attitude rule as restricting their rights under the NLRA.
The decision relies heavily upon Hyundai America Shipping Agency, Inc., 357 N.L.R.B. No. 80 (2011), where the Board addressed an employer’s rule threatening disciplinary action for “exhibiting a negative attitude toward or losing interest in your work assignment.” There, former Chair Wilma B. Liebman and Member Craig Becker concluded that Hyundai America’s rule was lawful because connecting an employee’s attitude with work assignments resulted in the rule being “significantly less likely” to be viewed by employees as prohibiting protected, concerted activity.”
In Copper River, the Board found that the handbook language in question applied only to unprotected conduct that interfered with the Company’s “legitimate business concerns.” On this issue, the administrative law judge who previously decided the case stated that Copper River’s rule does not prohibit employees from conversing about any subject. Instead, the rule was limited to those negative attitudes that are “disruptive to staff or [have] a negative impact on guests.”
Board Chairman Mark Gaston Pearce (D), dissented from the decision, and instead argued that “an employee would reasonably interpret a ‘negative attitude’ as one that is critical of the employer.” Pearce also dissented in the Hyundai America decision. Echoing that dissent, Pearce stated that employees would construe Copper River’s rule as precluding them from “discussing controversial topics, including terms and conditions of employment.”