Does the NLRA Protect “Negative Attitudes” in the Workplace?

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On November 3rd, a former employee of Trader Joe’s filed a charge with the National Labor Relations Board Regional Office in New York for violating the National Labor Relations Act (NLRA).  Trader Joe’s alleged unfair labor practice?  Firing an employee who had been repeatedly warned about his overly negative attitude.  This Trader Joe’s store is non-union, but a local division of the United Food and Commercial Workers (UFCW) is providing the employee’s legal representation.  At issue in the case is Trader Joe’s policy requiring employees to maintain a “positive attitude.”

Before you think that this is actually an article from news spoof site The Onion (www.theonion.com), keep in mind that earlier this year the Board required T-Mobile (another non-union company) to dump this policy about employee communications:

“Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.”  T-Mobile, 363 NLRB No.171, April 29, 2016.

So is the NLRB really against employers having a “positive work environment” and “communicating in a manner that is conducive to effective working relationships”? Although it may seem like it, actually it’s the policies that the Board is finding to be “ambiguous and vague”, and “would reasonably chill employees in the exercise of Section 7 rights.”  (These rights include “contentious communications regarding working conditions” and are not limited to unionized workplaces.)

To make sure that your well-intended policy doesn’t place you on the wrong end of one of these decisions, focus on identifying specific behaviors that are prohibited:

  • Insubordination to a manager
  • Lack of respect for fellow employees or customers.

Or encouraged:

  • Behaving in a professional manner
  • Professional behavior that promotes cooperation.

These may very well cause employees to ultimately have effective working relationships and make it easier to maintain a positive work environment, but it’s all in the way it’s said.  To make sure your policies don’t have unintended consequences, having them reviewed by an experienced labor and employment lawyer may very well be cheap insurance.


About the Authors

Michael Harrington

Michael Harrington has over 20 years of experience representing employers with union employees and those facing union organizing campaigns. Mike focuses his practice on labor and employment issues affecting the workplace. He has a broad experience conducting collective bargaining for employers in health care, construction, transportation, retail, manufacturing and the public sector.

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