Hills and Dales General Hospital

National Labor Relations Board - Board Decisions

Apr 1, 2014

360 N.L.R.B. 611 (N.L.R.B. 2014)

HILLS & DALES GENERAL HOSPITAL 611
360 NLRB No. 70
Hills and Dales General Hospital and Danielle Corlis.
Case 07–CA–053556
April 1, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On February 17, 2012, Administrative Law Judge
Geoffrey Carter issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed cross-exceptions and a supporting
brief. The General Counsel and the Respondent each
filed an answering brief, and the Respondent filed a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs1
and has decided to affirm the judge’s rulings, findings,
and conclusions only to the extent consistent with this
decision, and to adopt the recommended Order as modi-
fied and set forth in full below.2
This case presents a challenge to the facial validity of
three paragraphs in the Respondent’s Values and Stand-
ards of Behavior Policy. In relevant part, paragraph 11
states that employees will not make “negative comments
about our fellow team members,” including coworkers
and managers; paragraph 16 states that employees will
“represent [the Respondent] in the community in a posi-
tive and professional manner in every opportunity;” and
paragraph 21 states that employees “will not engage in or
listen to negativity or gossip.”
Applying the Board’s standard for analyzing work-
place rules set forth in Lutheran Heritage Village-
Livonia, 343 NLRB 646, at 646–647 (2004), the judge
found that paragraphs 11 and 21 violate Section 8(a)(1)
of the Act because employees would reasonably construe
them to prohibit protected Section 7 activity. With re-
spect to paragraph 16, however, he found no violation,
relying in principal part on the Board’s analysis of a
work rule in Tradesmen International, 338 NLRB 460,
461–462 (2002).
Lutheran Heritage states that if a work rule does not
explicitly restrict Section 7 activity, it will still be found
unlawful if: (1) employees would reasonably construe

1 By unpublished Order issued on March 21, 2013, the Board grant-
ed the General Counsel’s motion to strike the Respondent’s untimely
filed amended exceptions.
2 We shall modify the judge’s recommended Order to reflect the ad-
ditional 8(a)(1) violation found here and, as explained in the amended
remedy section, to include the standard remedial language for the viola-
tions found. We shall also substitute a new notice to conform to the
Order as modified.
the language to prohibit Section 7 activity; (2) the rule
was promulgated in response to union activity; or (3) the
rule has been applied to restrict the exercise of Section 7
rights. For each of the three paragraphs at issue here, the
only question before the Board is whether they violate
Section 8(a)(1) under prong (1) of this test.
As explained below, we adopt the judge’s findings
concerning paragraphs 11 and 21, and we reverse his
finding concerning paragraph 16.
1. We agree with the judge that the prohibitions of
“negative comments” and “negativity” in paragraphs 11
and 21, respectively, are unlawful.3 We find no merit in
the Respondent’s argument that the judge erred by find-
ing these prohibitions overbroad and ambiguous by their
own terms. To the extent that the Respondent argues that
these work rules cannot be found facially unlawful in the
absence of evidence of surrounding circumstances sug-
gesting a linkage between the rules’ restrictions and pro-
tected concerted activity, the judge correctly cited and
relied on controlling Board precedent to the contrary.
E.g., Claremont Resort & Spa, 344 NLRB 832, 832
(2005) (rule prohibiting negative conversations about
associates or managers unlawful on its face), 2 Sisters
Food Group, 357 NLRB 1816, 1817 (2011) (rule unlaw-
ful that subjected employees to discipline for the “inabil-
ity or unwillingness to work harmoniously with other
employees”). Thus, Claremont Resort and 2 Sisters
make clear that extrinsic evidence is not required to find
that a work rule is unlawfully overbroad and ambiguous
by its terms.4
We also reject the Respondent’s argument that the evi-
dence of employee involvement in developing the rules
removes any impermissible ambiguity as to the meaning
and purpose of these paragraphs (or to par. 16 discussed
below). As a general matter, such employee involvement
is no guarantee that work rules will not infringe on Sec-
tion 7 rights; employees might well endorse an unlawful
rule, knowingly or not, but their consent or acquiescence
cannot validate the rule. Here, in any case, the record is
unclear as to the extent of employee involvement. There
is no evidence that any employees who may have been
involved in creating the subject work rules were assured

3 The General Counsel did not allege that the prohibition of gossip
in par. 21 was unlawful. Citing the majority opinion in Hyundai Amer-
ica Shipping Agency, 357 NLRB 860, 861 (2011), the judge observed
that this paragraph “would arguably be on solid ground” if limited to
this prohibition. For the reasons set forth in his dissent in Hyundai, slip
op. at 2 fn. 4, Chairman Pearce disagrees with the judge’s observation.
4 We thus do not rely on any contrary implication in the judge’s ob-
servation that the Board has “usually” found work rules prohibiting
employee negativity to be unlawful where the record includes evidence
of surrounding circumstances indicating that the employer has by word
or deed linked the challenged rule to protected activity.
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or reasonably believed that the final adopted versions
would not interfere with the exercise of protected Section
7 rights. Nor would the prior involvement of some em-
ployees have determined how other employees reasona-
bly construed the rules, even if they were fully informed
of the rules’ origins.
2. Contrary to the judge, we find that paragraph 16 al-
so violates Section 8(a)(1). The requirement that em-
ployees “represent [the Respondent] in the community in
a positive and professional manner” is just as overbroad
and ambiguous as the proscription of “negative com-
ments” and “negativity” in paragraphs 11 and 21. Par-
ticularly when considered in context with these other
unlawful paragraphs, employees would reasonably view
the language in paragraph 16 as proscribing them from
engaging in any public activity or making any public
statements (i.e., “in the community”) that are not per-
ceived as “positive” towards the Respondent on work-
related matters. This would, for example, 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 employ-
ment—activity that may not be “positive” towards the
Respondent but is clearly protected by Section 7. See
generally Claremont Resort & Spa, supra; Costco Whole-
sale Corp., 358 NLRB 1100, 1101 (2012) (rule stating
that any communication posted electronically that dam-
aged the Company, defamed any individual, or damaged
any person’s reputation could result in discipline, includ-
ing termination, found unlawful).
We also reject the judge’s reliance on Tradesmen In-
ternational, supra, in which a “conflicts of interest” work
rule that required employees “to represent the company
in a positive and ethical manner” was found lawful. We
find the rule in Tradesmen distinguishable from para-
graph 16.5 The context of the provision in Tradesmen—
in contrast to paragraph 16 here—did not include closely
related unlawful provisions.6 Rather, it was part of a rule

5 Chairman Pearce and Member Schiffer did not participate in
Tradesmen and express no view as to whether it was correctly decided.
6 For the reasons stated above, we disagree with our colleague’s
view that par. 16 is analogous to the rule found lawful in Tradesmen.
Nor are we persuaded to analogize par. 16 to the “appropriate business
decorum” rule found lawful in Costco Wholesale Corp., 358 NLRB
1100, 1100. That rule appeared in the context of an “Electronic Com-
munications and Technology Policy” and expressly focused on elec-
tronic communications “for business use,” thus making clear that the
rule concerned how employees communicated with others while carry-
ing out their duties for the employer. By contrast, par. 16 broadly
applies to employees’ activities in the community at large, which clear-
ly could encompass protected activities engaged in on employees’ own
time.
Member Johnson would adopt the judge’s finding that par. 16 was
lawful, essentially for the reasons stated by the judge. He disagrees that
addressing a subject, “conflicts of interest,” unlikely to
suggest to employees that Section 7 activity might be
implicated. Reasonably understood in context, the
phrase “positive and ethical manner” in Tradesman
would likely be construed quite differently that the
phrase “positive and professional manner” at issue here.
Coupled with the word “ethical” in a rule addressing
conflicts of interests, the term “positive” has a signifi-
cantly narrower scope of meaning than the same term
coupled with the word “professional,” a broad and flexi-
ble concept as applied to employee behavior.
Accordingly, we find that paragraph 16’s requirement
that employees represent the Respondent “in the com-
munity in a positive and professional manner in every
opportunity” violates Section 8(a)(1) of the Act as al-
leged.
AMENDED REMEDY
The Order requires the Respondent to revise or rescind
paragraphs 11, 16, and 21 of the Hospital’s Values and
Standards of Behavior Policy. This is the standard reme-
dy to assure that employees may engage in protected
activity without fear of being subjected to an unlawful
rule. See Guardsmark, LLC, 344 NLRB 809, 812
(2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir.
2007). As stated there, the respondent may comply with
our order of rescission by reprinting the Values and
Standards of Behavior Policy without the unlawful lan-
guage or, in order to save the expense of reprinting the
whole policy, it may supply its employees with hand-
book inserts stating that the unlawful rules have been
rescinded or with lawfully worded rules on adhesive
backing that will correct or cover the unlawfully broad
rules, until it republishes the policy without the unlawful
provisions. Any copies of the policy that include the
unlawful rules must include the inserts before being dis-
tributed to employees. Id. at 812 fn. 8. See also Bettie
Page Clothing, 359 NLRB 777, 778–779 (2013). We
shall modify the judge’s recommended Order and substi-
tute a new notice with language more specifically ad-
dressing this remedy.

there is a meaningful distinction between a rule requiring “positive and
ethical” public behavior and one requiring “positive and professional”
behavior. Ethical behavior is behavior that is in accordance with the
standards for correct conduct or practice, especially the standards of a
profession. The term “professional conduct” refers to conduct appro-
priate to a profession. Clearly then the two terms may address the same
concept. Here, in a hospital setting, the term “professional conduct”
was used appropriately. Further, the rule at issue here is more akin to
the rule found lawful in Costco Wholesale Corp., supra requiring “ap-
propriate business decorum” in communicating with others, than to the
rule found unlawful in the same case and relied on by his colleagues.
HILLS & DALES GENERAL HOSPITAL 613
ORDER
The National Labor Relations Board orders that the
Respondent, Hills and Dales General Hospital, Cass City,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining a work rule that prohibits negative
comments about fellow team members.
(b) Maintaining a work rule that prohibits employees
from engaging in or listening to negativity.
(c) Maintaining a work rule requiring that employees
represent the employer in the community in a positive
and professional manner in every opportunity.
(d) In any like or related manner interfering with, re-
straining, coercing and employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days of the Board’s Order, revise or re-
scind the rules stated in paragraphs 11, 16, and 21 of its
Values and Standards of Behavior Policy.
(b) Furnish all current employees with inserts for the
current Values and Standards of Behavior Policy that (1)
advise that the unlawful rules have been rescinded, or (2)
provide the language of a lawful rule; or publish and dis-
tribute a revised Values and Standards of Behavior Poli-
cy that (1) does not contain the unlawful rules, or (2)
provides the language of lawful rules.
(c) Within 14 days after service by the Region, post at
its facility in Cass City, Michigan, copies of the attached
notice marked “Appendix.”7 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and

7 If this Order is enforced by a judgment of a United State court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing and Order of the
National Labor Relations Board.”
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since September 16, 2010 (6
months before the original charge in this proceeding was
filed).
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain the following rule stated in
paragraph 11 of our Values and Standards of Behavior
Policy: “We will not make negative comments about our
fellow team members and we will take every opportunity
to speak well of each other.”
WE WILL NOT maintain the following rule stated in
paragraph 21 of our Values and Standards of Behavior
Policy: “We will not engage in or listen to negativity or
gossip. We will recognize that listening without acting to
stop it is the same as participating.”
WE WILL NOT maintain the following rule stated in
paragraph 16 of our Values and Standards of Behavior
Policy: “We will represent Hills & Dales in the commu-
nity in a positive and professional manner in every op-
portunity.”
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days of the Board’s Order, revise
or rescind paragraphs 11, 16 and 21 of our Values and
Standards of Behavior Policy, and WE WILL advise em-
ployees in writing that we have done so and that the un-
lawful rules will no longer be enforced.
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL furnish you with inserts for the current Val-
ues and Standards of Behavior Policy MBEA that (1)
advise that the unlawful paragraphs in the rules have
been rescinded, or (2) provide the language of lawful
rules; or WE WILL publish and distribute a revised Values
and Standards of Behavior Policy that (1) does not con-
tain the unlawful paragraphs, or (2) provides the lan-
guage of lawful rules.
HILLS AND DALES GENERAL HOSPITAL
Jennifer Brazeal, Esq., for the Acting General Counsel.
Timothy Ryan, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
GEOFFREY CARTER, Administrative Law Judge. This case
was tried in Saginaw, Michigan, on January 9, 2012. Daniel
Corlis filed the original charge in this case on March 16, 2011,
and filed an amended charge on April 14, 2011.1 The Acting
General Counsel issued the complaint on November 15, 2011.
The complaint alleges that Hills and Dales General Hospital
(the Respondent or the Hospital) violated Section 8(a)(1) of the
National Labor Relations Act (the Act) by maintaining a Values
and Standards of Behavior Policy that includes overbroad pro-
visions that restrict employee rights under Section 7 of the Act.
(General Counsel (GC) Exh. 1(e), pars. 6–7.)
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, provides acute hospital care
at its facility in Cass City, Michigan, where it annually derives
gross revenues in excess of $250,000, and purchases and re-
ceives at its Michigan facilities goods valued in excess of
$5000 directly from points outside the State of Michigan. The
Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. (GC Exhs. 1(e), pars. 3–4; 1(f), pars. 3–4.)
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Hospital’s Culture in 2005
In 2005, the Hospital was struggling with a poor work envi-
ronment. Among other problems, hospital departments were
not cooperating with each other, and employee relationships

1 All dates are in 2011, unless otherwise indicated.
2 The Acting General Counsel’s motion to strike a seven-page tran-
script that was inadvertently included in GC Exh. 1 is hereby denied as
moot. (See GC Br. at 1 fn. 2 (noting that the transcript in question is
from an immigration proceeding that is unrelated to this case).) The
materials that the Acting General Counsel identified were not included
in my copy of the trial exhibits, nor were they included in the electronic
copy of the trial exhibits that is stored in the electronic files for this
case.
were suffering due to “back-biting and back stabbing.” As a
result, employee satisfaction was low, employees were looking
for other job opportunities (outside of the Hospital), and pa-
tients were seeking health care in other hospitals. (Transcript
(Tr.) 26.)
B. The Hospital Develops and Adopts
its Values and Standards of Behavior Policy
In 2006, the Hospital decided to begin working on changing
its culture, and to that end began implementing measures that
had been used successfully by another hospital that had faced
similar problems. (Tr. 26–27, 31.) Among other measures, the
Hospital set up employee teams to address issues such as stand-
ards and performance, employee recognition, continuous im-
provement, communication, and service recovery. (Tr. 27, 31.)
As its first project, the Hospital’s standards and performance
team took on the task of developing a statement of values and
standards. (Tr. 31.) Using the values and standards statement
of another hospital as a template, the standards and perfor-
mance team distributed a draft set of standards to all employees
for review and comment. After editing the draft standards
based on the first round of employee feedback, the standards
and performance team circulated two additional drafts to em-
ployees before settling on a final Values and Standards of Be-
havior Policy for the Hospital. (Tr. 32–35; see also Jt. Exh. 5.)
The Hospital’s Values and Standards of Behavior Policy co-
vers a wide range of topics, including customer service, respect,
teamwork, attitude, continuous improvement, and fun. (Jt. Exh.
4.) In this case, the following paragraphs from the Respond-
ent’s Values and Standards of Behavior Policy are at issue:
Teamwork
. . . .
11. We will not make negative comments about our fellow
team members3 and we will take every opportunity to speak
well of each other.
. . . .
16. We will represent Hills & Dales in the community in a
positive and professional manner in every opportunity.
Attitude
. . . .
21. We will not engage in or listen to negativity or gossip.
We will recognize that listening without acting to stop it is the
same as participating.
(Jt. Exh. 4 at pp. 2–3; see also GC Exh. 1(e), pars. 6–7.) The
Hospital has never given employees specific examples of what
conduct would be considered “negative” or “positive and pro-
fessional.” (Tr. 41.)
C. How the Hospital Uses its Values and Standards of
Behavior Policy
As a public declaration of its new culture, the Hospital asked

3 The term “team member” covers everyone who works at the Hos-
pital, ranging from the CEO to employees in entry level positions. (Tr.
40.)
HILLS & DALES GENERAL HOSPITAL 615
employees to sign (on a voluntary basis) poster-sized copies of
the Values and Standards of Behavior Policy. The Hospital
then framed the posters and placed them in the lobby (as well
as other locations) to enable patients to see them. (Tr. 35–36.)
The Hospital also asked employees to sign individual copies of
the policy (which were then placed in the employees’ personnel
files), and has included the policy in its human resources policy
manual. (Tr. 36–37; Jt. Exh. 6 at pp. 6–8 (including a form that
employees sign to acknowledge receipt of the human resources
policy manual).)
The Hospital has also used the Values and Standards of Be-
havior Policy as a basis for employee discipline. For example,
on March 4, 2011, the Hospital cited paragraph 16 of the policy
when it issued Danielle Corlis a written warning for posting the
following comment on Facebook:
Holy shit rock on [S!]. Way to talk about the douchebags you
used to work with. I LOVE IT!!!
(Jt. Exh. 3; see also Tr. 15–16; Jt. Exh. 2 (Corlis was respond-
ing to remarks by a former hospital employee who was dis-
charged for, as the employee described it, “playfully throwing a
yogurt cup at [her] boss”).)4
The Hospital’s Values and Standards of Behavior Policy re-
mains in effect. (Tr. 17–18, 29.) Since beginning its efforts to
change its culture in 2006, the Hospital has noted improve-
ments in employee and patient satisfaction, and the Hospital
has improved its ability to attract and retain personnel. (Tr. 28–
29.)
Discussion and Analysis
A. Credibility Findings
A credibility determination may rely on a variety of factors,
including the context of the witness’ testimony, the witness’
demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities, and reasonable inferences
that may be drawn from the record as a whole. Double D Con-
struction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership
Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed. Appx. 516
(D.C. Cir. 2003); see also Roosevelt Memorial Medical Center,
348 NLRB 1016, 1022 (2006) (noting that an ALJ may draw an
adverse inference from a party’s failure to call a witness who
may reasonably be assumed to be favorably disposed to a party,
and who could reasonably be expected to corroborate its ver-
sion of events, particularly when the witness is the party’s
agent). Credibility findings need not be all or nothing proposi-
tions—indeed, nothing is more common in all kinds of judicial
decisions than to believe some, but not all, of a witness’ testi-
mony. Daikichi Sushi, 335 NLRB at 622.
In this case, credibility is generally not at issue because all
three witnesses provided unrebutted testimony and came across
as poised and forthright in their testimony. The findings of fact

4 The complaint does not allege that the Hospital violated the Act by
terminating the employee based on the yogurt cup incident or by disci-
plining Corlis based on her Facebook posting. Only the Hospital’s
maintenance of the work rules stated in pars. 11, 16, and 21 of the
Hospital’s Values and Standards of Behavior Policy is at issue. (See
GC Exh. 1(e).)
are accordingly based on the testimony of all three witnesses
who testified at trial.
B. The Validity of Paragraphs 11, 16, and 21 of the
Hospital’s Values and Standards of Behavior Policy
1. Applicable legal standards
The Acting General Counsel alleges that by maintaining par-
agraphs 11, 16, and 21 of its Values and Standards of Behavior
Policy, the Hospital is violating Section 8(a)(1) of the Act be-
cause those paragraphs of the policy constitute overbroad re-
strictions of employee rights protected under Section 7 of the
Act. (GC Exh. 1(e), pars. 6–7.)
Under Section 7 of the Act, employees have the right to en-
gage in concerted activities for their mutual aid or protection.
Section 8(a)(1) of the Act makes it unlawful for an employer
(via statements, conduct, or adverse employment action such as
discipline or discharge) to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7.
See Brighton Retail, Inc., 354 NLRB 441, 447 (2009).
The test for evaluating whether an employer’s conduct or
statements violate Section 8(a)(1) of the Act is whether the
statements or conduct have a reasonable tendency to interfere
with, restrain, or coerce union or protected activities. KenMor
Electric Co., 355 NLRB 1024, 1027 (2010) (noting that the
employer’s subjective motive for its action is irrelevant); Yo-
shi’s Japanese Restaurant & Jazz House, 330 NLRB 1339,
1339 fn. 3 (2000) (same); see also Park N’ Fly, Inc., 349 NLRB
132, 140 (2007).
The Board has articulated the following standard that specif-
ically applies when it is alleged that an employer’s work rule
violates Section 8(a)(1):
If the rule explicitly restricts Section 7 activity, it is unlawful.
If the rule does not explicitly restrict Section 7 activity, it is
nonetheless unlawful if (1) employees would reasonably con-
strue the language of the rule to prohibit Section 7 activity; (2)
the rule was promulgated in response to union activity; or (3)
the rule has been applied to restrict the exercise of Section 7
rights. In applying these principles, the Board refrains from
reading particular phrases in isolation, and it does not presume
improper interference with employee rights.
NLS Group, 352 NLRB 744, 745 (2008) (citing Lutheran Her-
itage Village-Livonia, 343 NLRB 646, 646–647 (2004)), adopt-
ed in 355 NLRB 1154 (2010), enfd. 645 F.3d 475 (1st Cir.
2011). As with all alleged 8(a)(1) violations, the judge’s task is
to “determine how a reasonable employee would interpret the
action or statement of her employer . . . , and such a determina-
tion appropriately takes account of the surrounding circum-
stances.” Roomstore, 357 NLRB 1690, 1690 fn. 3 (2011).
The Board has issued two decisions that are instructive on
how the Lutheran Heritage Village-Livonia standard should
apply to work rules such as the ones at issue in this case. In
Claremont Resort & Spa, the Board was presented with a work
rule that prohibited “negative conversations” about employees
or managers and warned employees that such conversations
were in violation of the employer’s standards of conduct and
could result in disciplinary action. 344 NLRB 832, 832, 836
(2005). Applying the test set forth in Lutheran Heritage Vil-
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lage-Livonia, supra, the Board found that the rule was unlawful
because its “prohibition of ‘negative conversations’ about man-
agers would reasonably be construed by employees to bar them
from discussing with their coworkers complaints about their
managers that affect working conditions, thereby causing em-
ployees to refrain from engaging in protected activities.”
Claremont Resort & Spa, 344 NLRB at 832.
In Hyundai America Shipping Agency, the Board was pre-
sented with a number of work rules that the Acting General
Counsel challenged as unlawful. 357 NLRB 860, 860 (2011).
The Board agreed that the employer violated Section 8(a)(1) of
the Act by maintaining work rules that threatened employees
with discipline if they disclosed information from their person-
nel files, or if they complained to their coworkers instead of
voicing complaints directly to their supervisor or the human
resources office. Id. However, the Board also held that it was
lawful for the employer to threaten employees with discipline
for “indulging in harmful gossip” and “exhibiting a negative
attitude toward or losing interest in your work assignment.” Id.
at 861. Regarding the “harmful gossip” rule, the Board held
that employees could not reasonably construe the rule as pro-
hibiting Section 7 activity because the rule did not prohibit
discussions about managers, and was only directed at gossip,
which was commonly defined as chatty talk or rumors or re-
ports of an intimate nature. Id. (distinguishing the work rule at
issue in Claremont, which referred to any negative conversa-
tions about employees or managers, and thus implicitly extend-
ed to protected activity). Similarly, in finding that the rule
prohibiting a “negative attitude toward your work assignment”
was lawful, the Board explained that the wording of the rule
only applied to an employee’s attitude toward his or her work
assignment and did not expressly prohibit employee conversa-
tions, and thus was less likely to be construed as prohibiting
protected concerted activities. Id. at 861–862.
2. Analysis
The Acting General Counsel takes issue with paragraphs 11,
16, and 21 of the Hospital’s Values and Standards of Behavior
Policy because they state work rules that either prohibit “nega-
tive comments about our fellow team members” or “negativity
or gossip” (pars. 11 and 21) or direct employees to be “positive
and professional” (par. 16). In the Acting General Counsel’s
view, those work rules are overbroad because a reasonable
employee would conclude that the rules prohibit protected ac-
tivity such as employee discussions about the terms and condi-
tions of their employment. (Tr. 9–10; GC Br. at 5.) In its de-
fense, the Respondent maintains that the work rules cannot be
reasonably interpreted as restricting employee activities that are
protected by Section 7 of the Act. (Tr. 11; R. Br. at 5.)
In presenting its case, the Acting General Counsel essentially
argued that the text of the work rules themselves establishes
that the rules are unlawful. There is no evidence that the Hos-
pital made statements or engaged in conduct that affirmatively
linked its rules to protected activity,5 and thus the merits of the

5 Although the Acting General Counsel called Danielle Corlis to tes-
tify about the warning that the Hospital issued to her on March 4, the
Acting General Counsel only presented that testimony to show that the
rules remain in effect and can be used to discipline employees. (Tr.
Acting General Counsel’s challenges to the Hospital’s work
rules turn solely on the language of the rules themselves.
a. Values and Standards of Behavior Policy—paragraph 11
Paragraph 11 of the Hospital’s Values and Standards of Be-
havior Policy states that “[w]e will not make negative com-
ments about our fellow team members and we will take every
opportunity to speak well of each other.” The term “team
member” includes everyone who works at the Hospital, includ-
ing managers and employees. (See Findings of Fact (FOF) sec.
II(B).)
I agree with the Acting General Counsel that paragraph 11 of
the Hospital’s Policy is unlawful because employees would
reasonably construe the language of the rule to prohibit Section
7 activity. Although the rule does not explicitly restrict Section
7 activity and the Acting General Counsel did not offer evi-
dence that the Hospital made statements or engaged in conduct
that linked the rule to such activity, paragraph 11 implicitly
includes protected activities because it prohibits negative com-
ments about managers. Indeed, the Board’s decision in
Claremont Resort & Spa is directly on point, as the Board
found that the respondent’s rule prohibiting “negative conversa-
tions” about managers “would reasonably be construed by em-
ployees to bar them from discussing with their coworkers com-
plaints about their managers that affect working conditions,
thereby causing employees to refrain from engaging in protect-
ed activities.” Claremont Resort & Spa, 344 NLRB at 832; see
also Hyundai America Shipping Agency, 357 NLRB 860, 861
(explaining that the work rule at issue in Claremont Resort &
Spa implicitly included protected activity). The Hospital’s
work rule prohibiting “negative comments” about fellow team
members is virtually identical to the work rule that the Board
found unlawful in Claremont Resort & Spa, and thus by its
terms also would reasonably be construed by employees as
implicitly prohibiting protected activity.
Accordingly, I find that the Hospital violated Section 8(a)(1)
of the Act by maintaining the work rule stated in paragraph 11
of the Hospital’s Values and Standards of Behavior Policy.
b. Values and Standards of Behavior Policy—paragraph 16
Paragraph 16 of the Hospital’s Values and Standards of Be-
havior Policy states that “[w]e will represent Hills & Dales in
the community in a positive and professional manner in every
opportunity.” (FOF sec. II(B).) The Acting General Counsel
asserts that the work rule is unlawful because employees could
conceivably violate the rule by engaging in protected activities
that the Hospital would not view as “positive.” (See Tr. 10.)
The Acting General Counsel’s challenge to the rule in para-
graph 16 fails, as I do not find that an employee would reason-
ably interpret the Hospital’s directive to represent the Hospital
“in the community in a positive and professional manner” as a
rule that prohibits Section 7 activities. Paragraph 16 does not
explicitly or implicitly prohibit Section 7 activity. To the con-
trary, the surrounding circumstances indicate that the Hospital
adopted the rule for the more narrow (and lawful) purpose of

22.) There is no evidence (or argument by the Acting General Counsel)
that the remarks that Corlis made on Facebook were protected by the
Act.
HILLS & DALES GENERAL HOSPITAL 617
encouraging employees to assist with improving the Hospital’s
reputation in the community by maintaining a positive and
professional attitude when interacting with the community.
(FOF, secs. II(A)–(B) (noting that the Hospital developed the
rule in par. 16 in connection with its efforts in 2006 to improve
its culture).)
The Board’s decision in Tradesmen International is applica-
ble here, as in that case, the Board held that a work rule that
stated that employees were “expected to represent the company
in a positive and ethical manner” did not violate Section
8(a)(1). 338 NLRB 460, 461–462 (2002). The Board declined
to read the word “positive” in isolation, and found that employ-
ees would not reasonably believe that an expectation that they
represent the company in a positive and ethical manner
amounted to a work rule that prohibited Section 7 activities,
given the context of the employer’s efforts to prohibit conflicts
of interest and the lack of any actions by the employer that
established a link between the rule and protected activities.6 Id.
at 462.
I find similar deficiencies in the Acting General Counsel’s
challenge to the rule in paragraph 16 that employees represent
the Hospital in the community in a positive and professional
manner. Although the Acting General Counsel asserts that the
word “positive” is ambiguous, like the Board in Tradesmen
International I find that the term “positive” cannot be read in
isolation. Rather, in the context of the Hospital’s efforts to
improve its reputation in the community, paragraph 16’s call
for employees to represent the hospital in a positive and profes-
sional manner is a lawful call for employees to maintain a high
standard of professionalism with potential (or actual) customers
at every opportunity. Since the terms of paragraph 16 are clear
and serve a lawful purpose, and since there is no evidence that
the Hospital made statements or engaged in conduct that linked
paragraph 16 to protected activity, the Acting General Counsel
did not meet its burden of proving that the rule is unlawful.
c. Values and Standards of Behavior Policy—paragraph 21
Finally, paragraph 21 of the Hospital’s Values and Standards
of Behavior Policy states that “[w]e will not engage in or listen
to negativity or gossip. We will recognize that listening with-
out acting to stop it is the same as participating.” (FOF sec.
II(B).) The Acting General Counsel maintains that the work
rule violates the Act because a reasonable employee would
construe the term “negativity” as including protected activity.
(Tr. 10.)
Paragraph 21 would arguably be on solid ground if it was
limited only to prohibiting gossip. Indeed, in Hyundai America
Shipping Agency, the Board explained that because gossip is
defined as “rumor or report of an intimate nature” or “chatty
talk,” a work rule prohibiting gossip could not be reasonably
construed as prohibiting Section 7 activity. 357 NLRB 860,
861; see also Southern Maryland Hospital, 293 NLRB 1209,
1221–1222 (1989) (explaining that an employer may lawfully
maintain a work rule that prohibits “malicious gossip”), enfd. in

6 The Acting General Counsel argued that I should adopt the reason-
ing set forth in the dissent in Tradesmen International (see GC Br. at 6
fn. 3), but I am bound to follow the majority opinion in that decision.
pertinent part 916 F.2d 932 (4th Cir. 1990).
What makes paragraph 21 problematic, however, is that it al-
so prohibits employees from engaging in or listening to “nega-
tivity.” The Board has found work rules that prohibit negativity
to violate Section 8(a)(1) on multiple occasions, usually in
cases where the record has included evidence that the employer
made statements or engaged in conduct that linked the negativi-
ty rule to protected activity. See, e.g., Roomstore, 357 NLRB
1690, 1690 fn. 3 (finding that an employer’s work rule prohibit-
ing “any type of negative energy or attitudes” was unlawful
because the evidentiary record showed that the employer made
statements that linked the rule to protected activity); Salon/Spa
at Boro, Inc., 356 NLRB 444, 458–459 (2010) (employer’s
negativity policy was unlawful because the evidentiary record
showed that the policy proscribed protected activity in the form
of complaints about management’s conduct and other working
conditions). That line of cases does not help the Acting Gen-
eral Counsel’s cause here, because the Acting General Counsel
did not present any evidence that the Hospital made remarks
that linked paragraph 21 to protected activity, and the surround-
ing circumstances show that the Hospital adopted paragraph 21
to address a work environment that by all accounts was marred
with a history of back biting and back stabbing.
However, the Board has also found fault with work rules that
are overbroad and ambiguous by their terms. For example, in 2
Sisters Food Group, the Board found that it was unlawful for
an employer to maintain a work rule that subjected employees
to discipline for an “inability or unwillingness to work harmo-
niously with other employees,” because the rule was patently
ambiguous and so imprecise that employees would reasonably
construe the rule as prohibiting discussions and disagreements
between employees that related to protected Section 7 activi-
ties. 357 NLRB 1816, 1817 (2011); see also Hyundai America
Shipping Agency, 357 NLRB 860, 861 (explaining that the
Board found that the work rule at issue in Claremont Resort &
Spa, 344 NLRB 832, violated the Act because the rule prohibit-
ed negative employee conversations generally). It is here that
the Acting General Counsel’s challenge to paragraph 21 gains
traction, because like the work rule that the Board found unlaw-
ful in 2 Sisters Group, the Hospital’s prohibition of “negativi-
ty” is so patently ambiguous, imprecise and overbroad that a
reasonable employee would construe it as prohibiting protected
discussions about working conditions and the terms and condi-
tions of employment. I therefore find that the Hospital violated
Section 8(a)(1) of the Act by maintaining the work rule stated
in paragraph 21 of the Hospital’s Values and Standards of Be-
havior Policy.
CONCLUSIONS OF LAW
1. By maintaining a work rule (par. 11 of its Values and
Standards of Behavior Policy) that proscribes making “negative
comments about our fellow team members,” the Respondent
interfered with, restrained, and coerced employees in the exer-
cise of rights guaranteed in Section 7 of the Act, and thus vio-
lated Section 8(a)(1) of the Act.
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. By maintaining a work rule (par. 21 of its Values and
Standards of Behavior Policy) that proscribes engaging in or
listening to negativity, the Respondent interfered with, re-
strained, and coerced employees in the exercise of rights guar-
anteed in Section 7 of the Act, and thus violated Section 8(a)(1)
of the Act.
3. By committing the unfair labor practices stated in Con-
clusions of Law 1–2 above, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the Act.
4. I recommend dismissing the allegation in the complaint
that asserts that the Respondent violated the Act by maintaining
the work rule stated in paragraph 16 of the Respondent’s Val-
ues and Standards of Behavior Policy.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act. Specifically, having found that the Re-
spondent violated Section 8(a)(1) of the Act by maintaining a
work rule that prohibits negative comments about fellow team
members (defined as including employees and managers), and
by maintaining a work rule that prohibits engaging in or listen-
ing to negativity, I shall recommend that the Respondent be
ordered to revise or rescind those rules (pars. 11 and 21 of the
Values and Standards of Behavior Policy).
[Recommended Order omitted from publication]