Lafayette Park Hotel

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 824 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 824
Lafayette Park Hotel, a Limited California Partner-
ship and Hotel Employees, Restaurant Employ-
ees and Bartenders Union, Local 2850, Hotel
Employees and Restaurant Employees Interna-
tional Union, AFL–CIO. Case 32–CA–15314
August 27, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX, LIEBMAN,
HURTGEN, AND BRAME
Upon a charge filed by Hotel Employees, Restaurant
Employees and Bartenders Union, Local 2850, Hotel
Employees and Restaurant Employees International Un-
ion, AFL–CIO (the Union) on March 19, 1996, the Gen-
eral Counsel of the National Labor Relations Board is-
sued a complaint and notice of hearing on August 20,
1996, alleging that the Respondent, Lafayette Park Hotel,
a Limited California Partnership, violated Section 8(a)(1)
of the National Labor Relations Act.1 The Respondent
filed a timely answer denying the commission of any
unfair labor practices.
On November 12, 1996, the General Counsel, the Re-
spondent, and the Union filed with the Board a Motion to
Transfer Proceedings to the Board and a Stipulation of
Facts. On December 12, 1996, the Executive Secretary,
by direction of the Board, issued an order granting the
parties’ motion, approving the stipulation, and transfer-
ring the proceeding to the Board. Thereafter, the General
Counsel, the Union, and the Respondent each filed
briefs.
On the entire record in the case, the Board makes the
following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a California
partnership, with an office and place of business in La-
fayette, California, has been engaged in the operation of
a hotel and restaurant. During the 12 months preceding
the issuance of the complaint, the Respondent, in the
course and conduct of its business operations, derived
gross revenues in excess of $500,000, and purchased and
received goods or services valued in excess of $5000
which originated outside the State of California. We find
that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act. We further find that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent violated
Section 8(a)(1) of the Act by maintaining “unacceptable
conduct” rules in its employee handbook. The alleged
unlawful rules are set forth below.2

1 The Union filed a first amended charge on October 8, 1996.
The General Counsel does not contend that the rules
were initiated in response to any union and/or protected
concerted activity or that any employee has been disci-
plined under the rules for engaging in union and/or pro-
tected concerted activity. The General Counsel’s theory
of the violation is that by maintaining the rules the Re-
spondent has violated and continues to violate Section
8(a)(1) because the rules interfere with, restrain, and co-
erce employees in the exercise of rights guaranteed in
Section 7 of the Act.
A. Facts
At all material times, the Respondent has maintained
the following rules and standards of conduct as set forth
in its employee handbook:

STANDARDS OF CONDUCT
. . . .
The following conduct is unacceptable:
. . . .
6. Being uncooperative with supervisors, em-
ployees, guests and/or regulatory agencies or other-
wise engaging in conduct that does not support the
Lafayette Park Hotel’s goals and objectives.
. . . .
17. Divulging Hotel-private information to em-
ployees or other individuals or entities that are not
authorized to receive that information.
18. Making false, vicious, profane or malicious
statements toward or concerning the Lafayette Park
Hotel or any of its employees.
. . . .
31. Unlawful or improper conduct off the hotel’s
premises or during non-working hours which affects
the employee’s relationship with the job, fellow em-
ployees, supervisors, or the hotel’s reputation or
good will in the community.
. . . .
The following rules are also enforced:
. . . .
6. Employees are not permitted to use the restau-
rant or cocktail lounge for entertaining friends or
guests without the approval of the department man-
ager.
2 In brief, these rules prohibit, inter alia, the following kinds of em-
ployee activity: “conduct that does not support [the Hotel’s] goals and
objectives”; “divulging Hotel-private information” to unauthorized
individuals; making “false” statements concerning the Hotel or its
employees; “unlawful or improper conduct off the Hotel’s premises or
during nonworking hours”; use of the restaurant or lounge for entertain-
ing guests without prior approval; fraternizing with hotel guests on
hotel property; and remaining on the premises after the completion of
the employee’s shift.
326 NLRB No. 69
LAFAYETTE PARK HOTEL 825
7. Employees are not allowed to fraternize with
hotel guests anywhere on hotel property.
. . . .
SCHEDULING AND ATTENDANCE
. . . .
[Paragraph 4] Employees are required to leave
the premises immediately after the completion of
their shift and are not to return until the next sched-
uled shift.

The employee handbook is distributed by the Respon-
dent to each of its employees at the time of hire3 and
each employee must sign an acknowledgment of receipt.4
The Respondent has an open door policy to the general
manager if an employee has a complaint, wants to be
critical of a policy of the hotel, or has a complaint against
an employee. The Respondent’s employees receive a 50-
percent discount at the hotel restaurant.
B. Discussion
Resolution of the issue presented by the contested
rules of conduct involves “working out an adjustment
between the undisputed right of self-organization assured
to employees under the Wagner Act and the equally un-
disputed right of employers to maintain discipline in their
establishments. . . . Opportunity to organize and proper
discipline are both essential elements in a balanced soci-
ety.” Republic Aviation v. NLRB, 324 U.S. 793, 797–
798 (1945). In determining whether the mere mainte-
nance of rules such as those at issue here violates Section
8(a)(1), the appropriate inquiry is whether the rules
would reasonably tend to chill employees in the exercise
of their Section 7 rights.5 Where the rules are likely to
have a chilling effect on Section 7 rights, the Board may
conclude that their maintenance is an unfair labor prac-
tice, even absent evidence of enforcement. See NLRB v.
Vanguard Tours, 981 F.2d 62, 67 (2d Cir. 1992), citing
Republic Aviation, supra, 324 U.S. at 803 fn. 10.
Although we all agree with the standard to be applied,
we do not agree in its application. Thus, a majority of
the Board6 finds that standards of conduct 6, 17, and 31
and hotel rules 6 and 7 would not reasonably tend to chill
the exercise of Section 7 rights. A different majority7
finds that standard of conduct 18 would reasonably tend
to chill employees in the exercise of Section 7 rights.

3 The parties stipulated that the Respondent has hired 60 employees
since April 8, 1996.
4 The acknowledgments are maintained in employees’ files.
5 Member Hurtgen would not so limit the inquiry. If a rule reasona-
bly chills the exercise of Sec. 7 rights, it can nonetheless be lawful if is
justified by significant employer interests (e.g., a rule against solicita-
tion during working time chills Sec. 7 exercise for that period. But, the
rule is valid because the employer has a significant interest in having
worktime set aside for work.)
6 Chairman Gould and Members Hurtgen and Brame (Members Fox
and Liebman dissenting).
7 Chairman Gould and Members Fox and Liebman (Members Hurt-
gen and Brame dissenting).
The Board is unanimous in finding that the maintenance
of scheduling and attendance rule, paragraph 4 violates
Section 8(a)(1).
1. Standards of conduct 6, 17, and 31; rules 6 and 78
a. Standard of conduct 6
Standard of conduct 6 provides that the following con-
duct is unacceptable:

Being uncooperative with supervisors, employees,
guests and/or regulatory agencies or otherwise engag-
ing in conduct that does not support the Lafayette Park
Hotel’s goals and objectives.

The General Counsel and the Union contend that the
maintenance of the prohibition against engaging in con-
duct that does not support the Hotel’s “goals and objec-
tives” is unlawful. They reason that because the hand-
book does not define the Respondent’s “goals and objec-
tives,” employees could reasonably assume that a “goal”
of the hotel is to remain nonunion. Thus, the General
Counsel and the Union argue that employees may rea-
sonably believe that it is unacceptable to actively support
union organizing, and that the rule prohibits them from
participating in protected activities. They further main-
tain that any ambiguities in the rule should be construed
against the Respondent, the promulgator of the rule, and
that the mere maintenance of this rule, without enforce-
ment against union or protected concerted activity, vio-
lates the Act because the rule has a reasonable tendency
to chill employees’ exercise of their Section 7 rights.
The Respondent argues that the rule does not expressly
prohibit protected activity and there is no evidence that
any employee has actually been prevented, discouraged,
or restrained in any manner from exercising rights pro-
tected by Section 7. Absent such evidence, the Respon-
dent contends that any chilling effect is speculative.
We conclude that the mere maintenance of this rule
would not reasonably tend to chill employees in the ex-
ercise of their Section 7 rights. In this regard, the rule, in
providing that it is unacceptable for employees to engage
in conduct that does not support the Respondent’s “goals
and objectives,” addresses legitimate business concerns,
including, as the rule specifically states, being “uncoop-
erative with supervisors, employees, guests and/or regu-
latory agencies.” We find no ambiguity in this rule as
written. Rather, any arguable ambiguity arises only
through parsing the language of the rule, viewing the
phrase “goals and objectives” in isolation, and attributing
to the Respondent an intent to interfere with employee
rights. We are unwilling to place such a strained con-
struction on the language, and we find that employees
would not reasonably conclude that the rule as written
prohibits Section 7 activity.
8 Members Fox and Liebman do not join in this section of the deci-
sion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 826
Furthermore, the Respondent has not by other actions
led employees reasonably to believe that the rule prohib-
its Section 7 activity. Thus, the Respondent has not en-
forced the rule against employees for engaging in such
activity, and there is no evidence that the Respondent
promulgated the rule in response to union or protected
concerted activity or that those employees even engaged
in any such activity. Moreover, there is no evidence that
the Respondent exhibited antiunion animus. In these
circumstances, to find the maintenance of this rule
unlawful, as do our dissenting colleagues, effectively
precludes a common sense formulation by the Respon-
dent of its rule and obligates it to set forth an exhaus-
tively comprehensive rule anticipating any and all cir-
cumstances in which the rule even theoretically could
apply. Such an approach is neither reflective of the re-
alities of the workplace nor compelled by Section
8(a)(1).
We find that the General Counsel has not met his bur-
den of showing that the maintenance of this rule would
reasonably chill employees in the exercise of their Sec-
tion 7 rights. Accordingly, we find that the mere mainte-
nance of this rule in the employee handbook has no more
than a speculative effect on employees’ Section 7 rights,
which is too attenuated to warrant a finding of an 8(a)(1)
violation. We shall dismiss the complaint as to this rule.
b. Standard of conduct 17
Standard of conduct 17 states that the following con-
duct is unacceptable:

Divulging Hotel-private information to employees or
other individuals or entities that are not authorized to
receive that information.

The General Counsel and the Union contend that the
maintenance of this rule in the employee handbook is
unlawful. They reason that, because the term “Hotel-
private” is not defined in the handbook, employees could
reasonably believe that the rule prohibits discussions
among employees concerning wages, benefits, and other
terms and conditions of employment.
The Respondent argues that it has the right to keep its
business records confidential and may validly maintain a
rule which forbids employees from disclosing confiden-
tial information. The Respondent claims that there is no
ambiguity in this rule which does not on its face cover
employee wage discussion, but merely prohibits the dis-
closure of private information. We agree with the Re-
spondent and find that the maintenance of this rule does
not violate Section 8(a)(1).
Our dissenting colleagues state that discussion of
wages is part of organizational activity9 and employers
may not prohibit employees from discussing their own
wages or attempting to determine what other employees

9 International Business Machines Corp., 265 NLRB 638 (1982).
are paid.10 We agree. “But to concede this point lends
nothing to the analysis in this case, because the rule in
question in no way precludes employees from conferring
. . . with respect to matters directly pertaining to the em-
ployees’ terms and conditions of employment.” Aroos-
took County Ophthalmology v. NLRB, 81 F.3d 209, 212
(D.C. Cir. 1996).11 We do not believe that employees
would reasonably read this rule as prohibiting discussion
of wages and working conditions among employees or
with a union.12 Clearly, businesses have a substantial and
legitimate interest in maintaining the confidentiality of
private information, including guest information, trade
secrets, contracts with suppliers, and a range of other
proprietary information. Although the term “hotel-
private” is not defined in the rule, employees in our view
reasonably would understand that the rule is designed to
protect that interest rather than to prohibit the discussion
of their wages. Thus, just as employees would not rea-
sonably construe the rule as precluding them from dis-
closing their wage information in the normal course of
events to banks, credit agencies and similar entities, they
also would not reasonably construe the rule as precluding
them from discussing their wage information with other
employees. Our dissenting colleagues recognize the le-
gitimacy of the confidentiality interest but in this case
would find the rule unlawful by speculating both that it
prohibits conduct not addressed by the rule and that such
conduct includes Section 7 activity. We choose not to
engage in such speculation. Rather, we conclude that
the rule reasonably is addressed to protecting the Re-
spondent’s interest in confidentiality and does not impli-
cate employee Section 7 rights. Accordingly, we dis-
miss this allegation.
c. Standard of conduct 31
Standard of conduct 31 states that the following con-
duct is unacceptable:

Unlawful or improper conduct off the hotel’s premises
or during non-working hours which affects the em-
ployee’s relationship with the job, fellow employees,
10 See Waco, Inc., 273 NLRB 746, 748 (1984); Pontiac Osteopathic
Hospital, 284 NLRB 442, 465 (1987); International Business Machines
Corp., supra.
11 In Aroostook County Opthalmology, 317 NLRB 218 (1995), the
Board found unlawful the promulgation and enforcement of an overly
restrictive rule limiting the right of employees to discuss office business
with spouses, families or friends. The employer argued that the “rule—
when read in context—is designed only to prevent employees from
discussing patient medical information with persons outside of the
office.” In denying enforcement, the court agreed, concluding that the
rule on its face was not unlawful and finding that, absent evidence that
the employer was imposing an “unreasonably broad interpretation of
the rule upon employees, the Board’s determination to the contrary is
unjustified.” 81 F.3d at 212–213.
12 Unlike the cases cited by the dissent, the rule here does not bar
discussions of “terms and conditions of employment” or “employee
problems.”
LAFAYETTE PARK HOTEL 827
supervisors, or the hotel’s reputation or good will in the
community.

Contrary to our dissenting colleagues, we do not be-
lieve that this rule can reasonably be read as encompass-
ing Section 7 activity. In our view, employees would not
reasonably fear that the Respondent would use this rule
to punish them for engaging in protected activity that the
Respondent may deem to be “improper.” To ascribe
such a meaning to these words is, quite simply, far-
fetched. Employees reasonably would believe that this
rule was intended to reach serious misconduct, not con-
duct protected by the Act.
We recognize that the Board has stated that the main-
tenance of a similar rule (which, however, additionally
prohibited “unseeming” conduct) is unlawful. See Cin-
cinnati Suburban Press, 289 NLRB 966 (1988). That
finding, however, was made in the context of the respon-
dent’s “actions” in that case. Although, according to the
administrative law judge, the case “presented a close
‘concerted’ activity issue,” 289 NLRB at 975, the Board
found that the rule had been enforced against union activ-
ity in violation of Section 8(a)(3). 289 NLRB at 967–
968. Here, there is no such context and no factual basis
for reasonable employees to view the rule as prohibiting
Section 7 activity. Consequently, that case is distin-
guishable. Thus, we are left with the language of the rule
itself, which, as stated above, a reasonable employee
would not believe was intended to reach conduct pro-
tected by the Act. Accordingly, we find that the mainte-
nance of the rule does not violate Section 8(a)(1).13
d. Hotel rule 6
This rule provides:

6. Employees are not permitted to use the restaurant or
cocktail lounge for entertaining friends or guests with-
out the approval of the department manager.

The General Counsel and the Union contend that this
rule is unlawful because it allows management to select
which off-duty employees may use the premises, and can
therefore be used to inhibit Section 7 activity. Thus, the
General Counsel and the Union theorize that employees
may reasonably believe that they must seek employer
permission to engage in Section 7 activity in the restau-
rant or cocktail lounge, and that this belief would chill
the employees in the exercise of their Section 7 rights.
Contrary to our dissenting colleagues, we do not be-
lieve that this rule reasonably would be read by employ-

13 We note that the respondent did not except to the above finding in
Cincinnati Suburban Press. However, the Board in fn. 2 of its decision
in that case indicated its agreement with the judge’s finding that the
respondent’s maintenance of the rule in question violated Sec. 8(a)(1).
To the extent that that footnote can be read as tantamount to a finding
that the rule in question is unlawful even in the absence of the activity
with which it was viewed in context, Cincinnati Suburban Press is
overruled.
ees to require them to secure permission from their em-
ployer as a precondition to engaging in protected con-
certed activity on an employee’s free time and in non-
work areas. Brunswick Corp., 282 NLRB 794, 795
(1987), relied on by our dissenting colleagues, is distin-
guishable. There, the Board found unlawful a rule which
required employees to obtain the employer’s permission
before engaging in union solicitation in work areas dur-
ing nonworking time, and required the employer’s au-
thorization in order to solicit in the lunchroom and
lounge areas during breaks and lunch periods. Thus, in
Brunswick, union solicitation was directly implicated.
Here, the rule does not mention or in any way impli-
cate Section 7 activity. Rather, it merely requires per-
mission for “entertaining friends or guests.” In our view,
a reasonable employee would not interpret this rule as
requiring prior approval for Section 7 activity. There are
legitimate business reasons for such a rule, and we be-
lieve that employees would recognize the rule for its le-
gitimate purpose, and would not ascribe to it far-fetched
meanings such as interference with Section 7 activity.
We therefore find that the mere maintenance of this rule
would not reasonably tend to chill employees in the ex-
ercise of their Section 7 rights. Accordingly, this allega-
tion is dismissed.
e. Hotel rule 7
This rule provides:

7. Employees are not allowed to fraternize with hotel
guests anywhere on hotel property.

The General Counsel and the Union contend that the
maintenance of this rule is unlawful, reasoning that be-
cause the term “fraternize” is not defined, the rule could
reasonably be interpreted by employees to prohibit off-
duty employees from engaging in protected communica-
tions with hotel guests in nonworking areas of the Re-
spondent’s property, in an attempt to solicit sympathy or
support for the employees’ protected activities.
As with the previously discussed rules, we do not be-
lieve that employees reasonably would read this rule as
prohibiting protected employee communications with
customers about terms and conditions of employment.
Nor would it be likely to inhibit protected employee
communications with customers merely because the term
“fraternize” is undefined. Despite this undefined term,
the rule is not ambiguous. Employees would recognize
the legitimate business reasons for which such a rule was
promulgated,14 and would not reasonably believe that it
reaches Section 7 activity. We therefore find that the
Respondent’s maintenance of this rule in its employee
14 In its brief the Respondent suggests that the rule was promulgated
to prevent the appearance of favoritism, claims of sexual harassment,
and employee dissension created by romantic relationships in the
workplace.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 828
handbook does not chill employee rights or violate Sec-
tion 8(a)(1) of the Act.
2. Standard of conduct 1815
Standard of conduct 18 provides that the following
conduct is unacceptable:

Making false, vicious, profane or malicious statements
toward or concerning the Lafayette Park Hotel or any
of its employees.

The Board has found the maintenance of similar rules
to violate Section 8(a)(1) of the Act. In Cincinnati Sub-
urban Press, 289 NLRB at 975, the Board found unlaw-
ful a handbook provision, similar to the one at issue here,
which prohibited employees from making “false, vicious
or malicious statements concerning any employee, su-
pervisor, the Company, or its product.” The Board relied
on American Cast Iron Pipe Co., 234 NLRB 1126
(1978), enfd. 600 F.2d 132 (8th Cir. 1979), which invali-
dated a similar provision on the ground that it prohibited
and punished merely “false” statements, as opposed to
maliciously false statements, and was therefore over-
broad. In enforcing the Board’s Order, the court stated
that “[p]unishing employees for distributing merely
‘false’ statements fails to define the area of permissible
conduct in a manner clear to employees and thus causes
employees to refrain from engaging in protected activi-
ties.” 600 F.2d at 137.16
The Respondent’s standard of conduct 18 is nearly
identical to the provisions found unlawful in Cincinnati
Suburban, Spartan Plastics, and American Cast Iron.17
In accord with this Board18 and court precedent, we find

15 Members Hurtgen and Brame do not join in this section of the de-
cision.
Member Brame would find that the Respondent’s mere maintenance
of this rule does not reasonably tend to chill employees’ Sec. 7 activity.
As is true with the other rules and standards, the language of this rule
itself does not proscribe Sec. 7 activity. Furthermore, there is no evi-
dence that the Respondent implemented this rule in response to con-
certed protected or union activity or that it used the rule to discipline
any employee for engaging in such activity. In these circumstances,
Member Brame would find that employees reasonably would recognize
that the rule, in providing that it is unacceptable to make false as well
as vicious, profane or malicious statements towards the Respondent or
its employees, is directed at a legitimate employer interest and not Sec.
7 activity. To the extent that the cases relied on by the majority hold
that the mere maintenance of a rule prohibiting the making of false
statements violates Sec. 8(a)(1), Member Brame would overrule them.
16 See also Spartan Plastics, 269 NLRB 546, 552 (1984) (respondent
violated Sec. 8(a)(1) by maintaining a rule prohibiting employees from
making “false, vicious, or malicious statements concerning any em-
ployee, supervisor, the Company, or its products”).
17 The Respondent attempts to distinguish those cases on the ground
that here, unlike in those cases, there is no context of other unfair labor
practices to cause employees to reasonably fear being disciplined for
unknowingly false statements. We do not find this distinction signifi-
cant. In our view, the rule has a reasonable tendency to chill protected
activity even in the absence of other unlawful conduct.
18 See also Simplex Wire & Cable Co., 313 NLRB 1311 (1994).
that the Respondent’s maintenance of standard of con-
duct 18 violates Section 8(a)(1) of the Act.
3. Scheduling and attendance rule, paragraph 419
As set forth above, this rule requires employees to
leave the premises immediately after the completion of
their shift, and not return until their next scheduled shift.
Under Tri-County Medical Center, 222 NLRB 1089
(1976), “except where justified by business reasons, a
rule which denies off-duty employees entry to parking
lots, gates, and other outside nonworking areas will be
found invalid.” The General Counsel alleges that this
rule violates Section 8(a)(1) of the Act because it is not
limited to the interior of the premises and other working
areas, and the Respondent has not shown any business
justification for the rule. The Respondent argues that
“the record is devoid of any suggestion that Lafayette
Park includes parking lots and similar areas within this
rule.” The Respondent further contends that even if the
parking lot is considered to be covered by the rule, it as
well as all other areas of its property are “working areas.”
The Respondent also maintains that business reasons
justify a no access rule for off-duty employees in the
context of a hotel.20
We reject the Respondent’s argument that the rule
does not cover parking areas and other outside areas.21
The rule contains no explicit exclusion of such areas, and
therefore employees would reasonably read the rule as
covering those areas. Thus, even if the Respondent did
not intend the rule to reach those areas, that intent was
not clearly communicated to the employees. Further,
even if the rule could be considered ambiguous, any am-
biguity in the rule must be construed against the Respon-
dent as the promulgator of the rule.22
We also disagree with the Respondent’s contention
that all areas of the Respondent’s property should be
considered to be working areas. We see nothing in the
nature of the hotel business in general or the Respon-
dent’s business in particular to support such a finding.
19 All Board Members join in this section of the decision.
20 The Respondent claims that the rule prevents interference with
employees who are working and prevents guests from being confused
by off-duty employees who may still be in uniform; it reduces the risks
of accidents and claims from guests and other employees for sexual
harassment and other illegal activities; and it enhances security.
21 Member Brame finds that employees reasonably would conclude
that the Respondent’s “premises” includes the Respondent’s parking
areas and its other outside areas. Accordingly, on this basis, he con-
cludes that the Respondent’s maintenance of this rule violates Sec.
8(a)(1).
22 Norris/O’Bannon, 307 NLRB 1236, 1245 (1992).

LAFAYETTE PARK HOTEL 829
We further find that the Respondent’s proffered busi-
ness reasons for the rule do not justify a total denial of
access by off-duty employees to all areas of the Respon-
dent’s premises. The types of concerns raised by the
Respondent are common to service employers in general
and have been found to be insufficient to justify the de-
nial of access by off-duty employees to nonworking ar-
eas such as parking lots and other outside areas.23 The
Stipulation of Facts contains nothing which would justify
the restriction of access to nonworking areas of the Re-
spondent’s premises such as parking lots and other out-
side areas. Because the Respondent’s scheduling and
attendance rule, paragraph 4 does not meet the require-
ments set forth in Tri-County, supra, we find that the
maintenance of that rule would reasonably tend to chill
employees in the exercise of their Section 7 rights. Ac-
cordingly, we conclude that the Respondent has violated
Section 8(a)(1) of the Act by maintaining that rule in its
employee handbook.
CONCLUSIONS OF LAW
1. By maintaining the following standard of conduct in
its employee handbook, the Respondent has violated Sec-
tion 8(a)(1) of the Act.

18. Making false, vicious, profane or malicious state-
ments toward or concerning the Lafayette Park Hotel or
any of its employees.

2. By maintaining the following scheduling and atten-
dance rule in its employee handbook, the Respondent has
violated Section 8(a)(1) of the Act.

[Paragraph 4] Employees are required to leave the
premises immediately after the completion of their shift
and are not to return until the next scheduled shift.

3. The unfair labor practices found above have an ef-
fect on commerce within the meaning of Section 2(6)
and (7) of the Act.
4. The Respondent has not otherwise violated the Act
as alleged.
ORDER
The National Labor Relations Board orders that the
Respondent, Lafayette Park Hotel, a Limited California
Partnership, Lafayette, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Maintaining the following scheduling and atten-
dance rule in its employee handbook:

[Paragraph 4] Employees are required to leave the
premises immediately after the completion of their shift
and are not to return until the next scheduled shift.

23 See e.g., Ohio Masonic Home, 290 NLRB 1011 (1988), enfd. 892
F.2d 449 (6th Cir. 1989).
(b) Maintaining the following Standard of Conduct in
its Employee Handbook:

18. Making false, vicious, profane or malicious state-
ments toward or concerning the Lafayette Park Hotel or
any of its employees.

(c) In any like or related manner interfering with, re-
straining, or coercing 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) Rescind the rules quoted above, remove them from
its Employee Handbook, and advise the employees in
writing that the rules are no longer being maintained.
(b) Within 14 days after service by the Region, post at
its facility in Lafayette, California, copies of the attached
notice marked “Appendix.”24 Copies of the notice, on
forms provided by the Regional Director for Region 32,
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. Reasonable steps shall be taken by the
Respondent 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since September 19, 1995.
(c) 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.

CHAIRMAN GOULD, further concurring.
I agree with the majority opinion in this case which
finds that the Respondent’s standards of conduct 6, 17,
and 31, and hotel rules 6 and 7, are lawful, and that the
Respondent’s standard of conduct 18 and its scheduling
and attendance rule, paragraph 4, are unlawful. I write
separately, however, because I am concerned that the
analysis put forth by Members Fox and Liebman in their
partial dissent fails to appreciate the importance of civil-
ity and good manners for all people, including employ-
ees.
In their partial dissent, Members Fox and Liebman
find that standards of conduct 6, 17, and 31, and hotel
rules 6 and 7, are facially unlawful. They find that these
24 If this Order is enforced by a judgment of a United States 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 an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 830
rules are “ambiguous as to their reach,” and conse-
quently, “each causes employees to refrain from engag-
ing in protected activities.” While accusing the majority
of “paying lip service to the appropriate standard,” they
have completely lost sight of the most obvious meaning
and intent of these rules: the maintenance of civility and
good manners. In short, these are rules for life, not for
Section 7 conduct.
My colleagues’ finding that these rules are ambiguous
demonstrates a failure to apply the appropriate standard
to these rules. It is readily apparent from their opinion
that they have viewed these rules through the eye of a
sophisticated labor lawyer and have focused on whether
any language in the rules could theoretically encompass
Section 7 activity. Their search for ambiguity in these
rules, however, must begin with a focus on the obvious,
plain meaning of the language in the rule. When the ob-
vious meaning of such rules is the promotion of civility
and good manners, there is no basis to presume that a
reasonable employee might parse out certain language,
for example such as “goals and objectives” from standard
of conduct 6, and assume that it applies to union organiz-
ing. Similarly, that the term “Hotel-private information,”
as set forth in standard of conduct 17, is undefined does
not mean that it is intended to apply to anything other
than the obvious, i.e., the legitimate privacy concerns
that arise in the hotel business.
In short, it is not enough to find that certain language
in a rule is broad enough to arguably apply to Section 7
activity. The appropriate inquiry must center on whether
a reasonable employee could believe that the rule prohib-
its protected activity. When the rules have an obvious
intent, they cannot be found unlawful by parsing out cer-
tain words and creating theoretical definitions that differ
from the obvious ones. If that were the standard, virtu-
ally all of the work rules in today’s workplace could be
deemed violative of our Act unless they explicitly state
that they do not apply to Section 7 activity. Such find-
ings would clearly be inconsistent with the purposes of
the Act. Accordingly, I join Members Hurtgen and
Brame in finding that the Respondent’s maintenance of
these rules do not violate Section 8(a)(1) of the Act.

MEMBERS FOX and LIEBMAN, dissenting in part.
We agree with our colleagues that the appropriate in-
quiry in this case is whether the maintenance of the rules
at issue reasonably would tend to chill employees in the
exercise of their Section 7 rights. We part company with
them in the application of this principle to standards of
conduct 6, 17, and 31 and hotel rules 6 and 7. While pay-
ing lip service to the appropriate standard, our colleagues
have applied that standard in such a way as to enable
employers lawfully to maintain rules that have the likely
effect of chilling Section 7 activity.
Employers, of course, have the right to issue rules of
conduct to maintain workplace discipline and further
legitimate business purposes. In accommodating this
undisputed right with the equally undisputed right of
employees to engage in Section 7 activity, as we must do
in construing workplace rules, the Board has flexibility
to “accomplish the dominant purpose of the legisla-
tion. . . . So far as we are here concerned that purpose is
the right of employees to organize for mutual aid without
employer interference. This is the principle of labor rela-
tions which the Board is to foster.” Republic Aviation
Corp. v. NLRB, 324 U.S. 793, 798 (1945).
Our colleagues in the majority concede that mainte-
nance of workplace rules may violate the Act even absent
evidence of enforcement. See NLRB v. Vanguard Tours,
981 F.2d 62, 67 (2d Cir. 1992), citing Republic Aviation
Corp. v. NLRB, supra, 324 U.S. at 803 fn. 10. Yet, they
proceed consistently to rely on nonenforcement as proof
of the rules’ lawfulness, thereby creating a catch-22 for
employees considering protected activity: either they
must risk discipline under the rules or refrain from con-
duct to avoid penalty. Either way, their Section 7 rights
are infringed.
Indeed, we are mystified that while all of our col-
leagues agree that scheduling and attendance rule, para-
graph 4 violates Section 8(a)(1) because of its likely
chilling effect on Section 7 rights—and the Chairman
agrees that standard of conduct 18 is similarly unlaw-
ful—they nevertheless find the remaining rules lawful.
In our view, our colleagues have drawn artificial distinc-
tions and miss the common thrust. Each of these seven
rules suffers from the same deficiency: they are all overly
broad and equally ambiguous as to their reach.1 Each
fails to define the area of impermissible conduct in a
manner clear to employees. As a result, each has a rea-
sonable tendency to cause employees to refrain from
engaging in protected activities.
We find no merit to our colleagues’ conclusion that
any impact of these rules on the employees’ exercise of
their Section 7 rights is purely speculative or too attenu-
ated to warrant an 8(a)(1) finding. In our view, an em-
ployee contemplating protected Section 7 activity would
be uncertain as to whether these rules encompass that
activity. Because violation of the rules may result in
discipline, an employee would reasonably hesitate before
engaging in protected activity and would thereby be
chilled in the exercise of his or her Section 7 rights. In
this regard, we note that the Respondent requires each
employee to sign an “Acknowledgement of Receipt of
Employee Handbook,” and the Respondent maintains
this form in the employee’s file. By signing this docu-
ment, the employee represents that he “understand[s] that
[the handbook] contains important information about

1 “Where ambiguities appear in employee work rules promulgated
by an employer, the ambiguity must be resolved against the promulga-
tor of the rule rather than the employees who are required to obey it.”
Norris/O’Bannon, 307 NLRB 1236, 1245 (1992), quoting Paceco, 237
NLRB 399 fn. 8 (1978).
LAFAYETTE PARK HOTEL 831
Hotel personnel policies and the privileges and obliga-
tions of the employees of the Hotel.” In addition, the
handbook itself states that “[e]mployees who fail to fol-
low the established policies, procedures, and rules of the
hotel will be disciplined.” In effect, our colleagues’ de-
cision requires that employees seeking to engage in
activity protected by the National Labor Relations Act
must risk violating their employer’s work rules and
subjecting themselves to disciplinary action in order to
test whether that activity is covered by the rules. Our
colleagues find such a situation permissible; we do not.
Accordingly, we must dissent.

Analyzing each of the alleged unlawful rules under es-
tablished Board principles, we conclude, as set forth be-
low, that the maintenance of these rules violates Section
8(a)(1) of the Act.2
Standard of Conduct 6
Standard of conduct 6 provides that the following con-
duct is unacceptable:

Being uncooperative with supervisors, employees,
guests and/or regulatory agencies or otherwise engag-
ing in conduct that does not support the Lafayette Park
Hotel’s goals and objectives.

As set forth in the majority opinion, the Respondent
argues that this standard is lawful because it does not
expressly prohibit protected activity and because there is
no evidence that it has actually restrained or discouraged
any employee from exercising Section 7 rights. The
General Counsel and the Union argue that such evidence
is immaterial in the case of rules that are so broad or am-
biguous, and in the case of standard of conduct 6, they
argue that the prohibition against engaging in conduct
that “does not support” the Respondent’s “goals and ob-
jectives” would discourage protected activity in view of
the fact that the handbook contains no definition of
“goals and objectives.”
Our colleagues acknowledge that Board precedent
holds that the mere maintenance of an ambiguous or
overly broad rule is unlawful because it tends to inhibit
employees from engaging in otherwise protected activity.
Ingram Book Co., 315 NLRB 515, 516 (1994); J. C.
Penney Co., 266 NLRB 1223, 1224 (1983). Accord:
Medeco Security Locks v. NLRB, 142 F.3d 733, 745 (4th
Cir. 1998) (employer’s prohibition on disclosure unlaw-
ful if it might deter protected activity “even if an em-
ployee has yet to exercise a right protected by the Act”).
Our colleagues attempt to distinguish such precedents on
grounds that standard of conduct 6 could not reasonably
be read as prohibiting protected activity. We disagree.

2 We agree, for the reasons set forth in the majority opinion, that the
Respondent violated Sec. 8(a)(1) of the Act by maintaining standard of
conduct 18 and scheduling and attendance rule, par. 4 in its employee
handbook.
The rule’s failure to define the hotel’s “goals and ob-
jectives” is overbroad and ambiguous and reasonably
could lead employees to believe that standard of conduct
6 prohibits protected activity.3 We agree with the General
Counsel and the Union that employees could reasonably
conclude that if they chose to support a union, they could
be engaging in conduct that did not support the Respon-
dent’s “goals and objectives.” We do not doubt that
some employers desire to keep their workplaces union
free. See BE & K Construction Co. v. NLRB, 133 F.3d
1372, 1376 (11th Cir. 1997). Perhaps even more funda-
mentally, reasonable employees could just as easily con-
clude that the Respondent formulated the terms and con-
ditions of employment for its employees consistently
with its overall philosophy or “goals and objectives.”
Thus, they might very reasonably conclude that any con-
certed protest of current terms and conditions of em-
ployment, conduct certainly protected by the Act, would
violate the Respondent’s rule.
In our view, the ambiguity of this rule is sufficient to
chill the exercise of protected conduct. Contrary to our
colleagues, we find this potential chilling effect to be
more than speculative or attenuated. We believe that it is
the uncertainty over the rule’s meaning, the absence of
evidence that the rule’s scope had been permissibly de-
fined for employees, and the possibility of enforcement
against protected activity that would reasonably tend to
chill the exercise of Section 7 rights.4
Our colleagues rely on the absence of any union or
protected concerted activity by the employees to support
their finding that any impact of these alleged unlawful
standards of conduct on the exercise of employees’ Sec-
tion 7 rights is speculative or attenuated. We disagree.
If anything, the absence of evidence of union or pro-
tected concerted activity by the employees suggests that
the rules are indeed working to discourage protected ac-
tivity.
For these reasons, we find that the maintenance of this
rule violates Section 8(a)(1).
Standard of Conduct 17
Standard of conduct 17 states that the following con-
duct is unacceptable:

3 That the rule specifies that it is unacceptable to be “uncooperative
with supervisors, employees, guests and/or regulatory agencies” does
not cure the problem, because the rule also broadly prohibits “otherwise
engaging in conduct” not supportive of the hotel’s “goals and objec-
tives.”
4 In light of the handbook’s statement, noted above, that employees
“will be disciplined” for failing “to follow the established policies,
procedures, and rules of the hotel,” employees would understandably
be reluctant to place their jobs in jeopardy by engaging in Sec. 7 pro-
tected conduct, since they might reasonably fear that the Respondent
could determine that the conduct “does not support [its] goals and ob-
jectives.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 832
Divulging Hotel-private information to employees or
other individuals or entities that are not authorized to
receive that information.

For the following reasons we agree with the General
Counsel and the Union that the prohibition on disclosure
of “Hotel-private” information, a term that is undefined
in the Handbook, could reasonably lead employees to
believe that the standard prohibits discussion among em-
ployees concerning wages, benefits, and other terms and
conditions of employment. We thus reject the Respon-
dent’s argument (accepted by our colleagues), that the
standard is not unduly ambiguous and would reasonably
be construed as merely prohibiting the disclosure of in-
formation other than that directly pertaining to wages and
working conditions that an employer could properly keep
confidential.
It is well established that discussion of wages, benefits,
and working conditions are an important part of organ-
izational and other concerted activity.5 Although em-
ployers may have a substantial and legitimate interest in
limiting or prohibiting discussion of some aspects of
their affairs, they may not prohibit employees from dis-
cussing their own wages and working conditions or at-
tempting to determine, for example, what other employ-
ees are paid.6 Standard of conduct 17 is overbroad and
fails to clearly define the impermissible conduct. It is
not crafted so that employees would understand that the
standard does not prohibit them from, for example, com-
piling wage information on their own or discussing em-
ployer policies or actions that affect their working condi-
tions with others. In light of that ambiguity, which must
be construed against the Respondent,7 employees may
reasonably believe that protected activity is prohibited by
this standard.8 Therefore, we believe that the Respon-

5 Advance Transportation, 299 NLRB 900 (1990) (employer’s
profit-sharing plan); Korea News, 297 NLRB 537, 538 (1990) (harsh
practices of supervision, numbers of employees assigned to particular
tasks, conditions of work space, overtime pay); International Business
Machines, 265 NLRB 638 (1982) (wage information).
6 See, e.g., Kinder-Care Learning Centers, 299 NLRB 1171, 1171–
1172 (1990) (prohibition on discussing “condition of center facilities
and the terms and conditions of employment” with parents of children
at center); Pontiac Osteopathic Hospital, 284 NLRB 442, 465 (1987)
(rule prohibiting discussion of “Confidential Information” including
“employee problems”); Waco, Inc., 273 NLRB 746, 747–748 (1984)
(prohibition on discussing wages); Jeannette Corp. v. NLRB, 532 F.2d
916, 919 (3d Cir. 1976) (same).
7 Norris/O’Bannon, 307 NLRB 1236, 1245 (1992) (ambiguities con-
strued against promulgator of rule).
8 Medeco Security Locks v. NLRB, supra, 142 F.3d at 745; Pontiac
Osteopathic Hospital, supra (prohibition of discussion of “[h]ospital
affairs, patient information, and employee problems” found to be
overly broad and violative of Sec. 8(a)(1)). See also Aroostook County
Regional Ophthalmology Center, 317 NLRB 218 (1995), enf. denied in
part 81 F.3d 209 (D.C. Cir. 1996), where the Board found that the
employer violated Sec. 8(a)(1) by maintaining, inter alia, a rule stating
that “no office business is a matter for discussion with spouses, families
or friends.” Finding that “ordinarily ‘office business’ may reasonably
be interpreted to include employees’ terms of employment,” the Board
dent’s maintenance of this rule would reasonably tend to
chill the employees’ exercise of their Section 7 rights.9
Accordingly, we would find that the Respondent violated
Section 8(a)(1) by maintaining this rule in its employee
handbook.
Standard of Conduct 31
Standard of conduct 31 states that the following con-
duct is unacceptable:

Unlawful or improper conduct off the hotel’s premises
or during non-working hours which affects the em-
ployee’s relationship with the job, fellow employees,
supervisors, or the hotel’s reputation or good will in the
community.

In Cincinnati Suburban Press, 289 NLRB 966, 975
(1988), the Board found unlawful the maintenance of a
rule prohibiting “[u]nlawful, improper or unseeming [sic]
conduct on or off the Company premises or during non-
working hours which affects the employee’s relationship
to his/her job, to his/her fellow employees or to his/her
supervisors, or affecting the Company’s product reputa-
tion or goodwill in the community.” Standard of conduct
31, at issue here, is virtually identical. In each case, “the
rule fails to define the area of permissible conduct in a
manner clear to employees.” 289 NLRB at 975. Em-
ployees may reasonably fear that the Respondent will use
this rule in the future to punish them for engaging in pro-
tected activity that the Respondent may deem to be “im-
proper.” Contrary to our colleagues and in accordance
with clear and well-established precedent,10 we find that
the Respondent violated Section 8(a)(1) of the Act by
maintaining this rule in the employee handbook.

held that it was “at least ambiguous whether the ‘no office business’
provision is intended to be limited to matters of patient information,” as
claimed by the employer. Because employees have the right to discuss
their terms of employment with others, the Board found the provision
to be prima facie unlawful. Our colleagues in the majority rely on the
court of appeals decision that reversed the Board. However, the court
was particularly persuaded by the placement of the rule in the office
policy manual; it followed a long paragraph about patient confidential-
ity in which the term “office business” was used to refer to confidential
patient medical information. In context, the court concluded that the
Board’s broad interpretation of the rule was unjustified. 81 F.3d at 213.
No such context is provided for standard of conduct 17.
9 As discussed above, contrary to our colleagues, we find the mere
presence of this ambiguous rule in the employee handbook, without
more, to be sufficient to chill the employees in the exercise of their Sec.
7 rights.
10 Our colleagues’ attempt to distinguish Cincinnati Suburban is un-
convincing. “Unlawful or improper conduct,” proscribed by standard
of conduct 31, is indistinguishable from “unlawful, improper or un-
seeming conduct,” proscribed in Cincinnati Suburban Press. Nor is the
fact that the rule in Cincinnati Suburban Press had actually been en-
forced grounds for distinction. As stated, the mere maintenance of a
rule can chill employee rights, even absent evidence of enforcement.
Our colleagues have thus overruled Cincinnati Suburban without satis-
factory explanation.
LAFAYETTE PARK HOTEL 833
Hotel Rule 6
This rule provides:

6. Employees are not permitted to use the restaurant or
cocktail lounge for entertaining friends or guests with-
out the approval of the department manager.

The General Counsel and the Union contend that this
rule is unlawful because it allows management to select
which off-duty employees may use the premises. In
Brunswick Corp., 282 NLRB 794, 795 (1987), the Board
found unlawful a rule requiring employees to obtain the
employer’s permission before engaging in union solicita-
tion in work areas during nonworking time, and requiring
the employer’s authorization in order to solicit in the
lunchroom and lounge areas during breaks and lunch
periods. The Board stated that any rule that requires em-
ployees to secure permission from their employer as a
precondition to engaging in protected concerted activity
on an employee’s free time and in nonwork areas is un-
lawful. Further, “the mere existence of an overly broad
rule tends to restrain and interfere with employees’ rights
under the Act even if the rule is not enforced.” Id.
Applying these principles, we find it plain that where
an employer allows some off-duty employees access to
its restaurant and lounge, it may not condition that access
on the approval of management. Hotel rule 6 does just
that. This rule allows the Respondent to select which
employees will receive permission to use the Respon-
dent’s facilities and to deny access to employees seeking
to engage in Section 7 activity on their own time. In our
view, such a rule has a reasonable tendency to chill em-
ployees in the exercise of their Section 7 rights and its
maintenance violates Section 8(a)(1).11

Hotel Rule 7

This rule provides:

7. Employees are not allowed to fraternize with hotel
guests anywhere on hotel property.

11 Our colleagues find that this rule was established for legitimate
business reasons and that reasonable employees would recognize that
lawful purpose and would not believe that Sec. 7 activity was encom-
passed by the rule. Contrary to our colleagues, we do not think that the
Respondent has provided a legitimate business reason for this rule. The
Stipulation of Facts which constitute the record in this case provide no
justifications for any of the rules or standards of conduct, and the con-
tention in the Respondent’s brief that the rule prevents interference with
employees who are working, reduces risks of accidents and claims of
sexual harassment from guests and other employees, and enhances
security does not explain why more carefully drafted rules could not
serve those purposes. Given its present form, it is not “far-fetched” that
reasonable employees could conclude that some Sec. 7 activity could
be covered by the rule. Employees should not have to risk their jobs in
order to test the rule’s coverage.
Section 7 protects employee communications with cus-
tomers about terms and conditions of employment.12 We
agree with the General Counsel and the Union that be-
cause the term “fraternize” is undefined the rule can rea-
sonably be read to prohibit off-duty employees from en-
gaging in protected communications with hotel guests in
nonworking areas of the Respondent’s property, in an
attempt to solicit sympathy or support for the employees’
protected activities. Even if the rule was established for
legitimate business purposes, as found by our colleagues,
it is not drafted so as to clearly define what is proscribed
and eliminate any ambiguity as to whether protected ac-
tivity is covered. It is this ambiguity that chills reason-
able employees in the exercise of their Section 7 rights.13
Accordingly, we find that the Respondent’s maintenance
of this rule in its employee handbook is a violation of
Section 8(a)(1) of the Act.
Conclusion
For the foregoing reasons, we find that established
Board precedent compels the conclusion that the mere
maintenance of each of the rules alleged to be unlawful
in the complaint reasonably would tend to chill an em-
ployee in the exercise of his or her Section 7 rights. Ac-
cordingly, we conclude that the maintenance of those
rules in the employee handbook violates Section 8(a)(1)
of the Act. Our approach to these rules is not, as our col-
leagues contend, purely hypothetical or fanciful. While
the Respondent may or may not have purposely intended
to include protected activities within the scope of these
rules, that is of no import. The point is that because each
rule is susceptible to doubt as to its coverage, each rea-
sonably could lead an employee to refrain from protected
activity for fear of breaking the rule and incurring disci-
plinary penalty. That is the essence of “chilling” of
rights long recognized by the Board and the courts.
In reading these rules as we do, we are by no means
precluding or restricting employers from achieving le-
gitimate business objectives by imposing work rules
governing employee conduct. Our construction is in-
tended to safeguard the opportunity to exercise Section 7
rights as well as the ability to enforce proper workplace
discipline. Both, as our colleagues concede, are “essential
elements in a balanced society.” Republic Aviation v.
NLRB, 324 U.S. at 798. We only require that workplace
rules be narrowly and precisely drawn to define the pro-
scribed conduct so that an employee contemplating pro-
tected Section 7 activity would not reasonably wonder
whether that activity was covered by the rules’ prohibi-
12 See NCR Corp., 313 NLRB 574, 576 (1993); Kinder-Care Learn-
ing Centers, 299 NLRB 1171, 1171–1172 (1990).
13 The fact that there is no evidence of enforcement is irrelevant
where, as here, the mere presence of the rule would reasonably tend to
chill the employees in the exercise of their Sec. 7 rights. See NLRB v.
Beverage-Air Co., 402 F.2d 411, 419 (4th Cir. 1968) (“mere existence”
of an overbroad but unenforced no-solicitation rule is unlawful because
it “may chill the exercise of the employees’ [Sec.] 7 rights”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 834
tions. This would spare employees from the catch-22
choice whether to refrain from protected conduct or test
the reach of the rules under peril of disciplinary action.
Requiring employers to draft rules of conduct narrowly
and with precision does not require any business sacrifice
or impose any real burden. Surely, employers can craft
rules which are clear on their face and can not reasonably
be read to interfere with or restrain the exercise of Sec-
tion 7 rights. If the rules were drafted so as to eliminate
ambiguity, employers could legitimately maintain disci-
pline and further business objectives, and employees
would not be chilled in the exercise of their Section 7
rights. We find that the rules at issue here were not so
drafted. Accordingly, we would order the Respondent to
rescind these rules, delete them from the employee hand-
book, and notify the employees that the rules will no
longer be maintained.

MEMBER HURTGEN, concurring in part, dissenting in part.
I agree that the maintenance of a rule which, on its
face, interferes with Section 7 activity, is unlawful, even
if it has not been applied. However, I do not agree that a
rule should be condemned as unlawful simply because it
can be parsed broadly enough to theoretically cover Sec-
tion 7 activity. Thus, where the rule does not refer to
Section 7 activity (e.g., solicitation or distribution), is not
motivated by such activity, has never been applied to
such activity, and does not affect such activity, I would
not reach out to condemn it. Indeed, I would not spend
the Board’s scarce resources by ranging through em-
ployment rules in an effort to see if some of them can
conceivably be construed to refer to Section 7 activity.
Consistent with this approach, I agree with the major-
ity that standards 6, 17, and 31 and rules 6 and 7 are law-
ful. Also consistent with this approach, I conclude that
standard 18 is lawful. In this latter regard, I agree that,
hypothetically, an employee might utter a falsity in the
course of a Section 7 statement, under circumstances
where the falsity would not remove the statement from
the protection of Section 7. I also agree, again hypo-
thetically, that the Respondent might read its rule me-
chanically and might punish the employee. If this hap-
pened, the punishment would be unlawful. However,
none of this has happened. Further, unlike the cases re-
lied upon by the majority (e.g., Cincinnati Suburban
Press, 289 NLRB 966 (1988)), there are no unfair labor
practices of a kind which would cause a reasonable em-
ployee to believe that standard 18 would be unlawfully
construed and applied. In this regard, I recognize that
scheduling and attendance rule, paragraph 4 (discussed,
infra) is unlawful. However, that rule deals with a sub-
ject matter that is entirely different from the subject mat-
ter of standard 18. In addition, scheduling and atten-
dance rule, paragraph 4 is unlawful on its face. It is not
an example of a lawful rule that is unlawfully construed
and applied. In sum, an employee who is exposed to
scheduling and attendance rule, paragraph 4 would not
reasonably conclude that an entirely different rule (stan-
dard 18) would be construed so as to apply to protected
activity. Finally, to the extent that my colleagues read
Cincinnati Suburban, supra, to hold that the rules therein
are per se unlawful (i.e., without reference to other unfair
labor practices), I disavow that holding. Such a holding
would mean an employer violates Federal law if it tells
its employees, through a neutral rule, that it is improper
to lie. I do not think that Congress envisaged such a re-
sult.
My conclusions with respect to the foregoing rules are
not inconsistent with my conclusion that scheduling and
attendance rule, paragraph 4 is unlawful. That rule
clearly requires employees to leave Respondent’s prem-
ises after their shift. If they must leave, they obviously
cannot exercise their Section 7 right to engage in union
activity on the premises (albeit outside the hotel itself)
after the completion of their shift.1 Thus, the rule on its
face, clearly interferes with a Section 7 right.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT maintain the following scheduling and
attendance rule in our employee handbook:
[Paragraph 4] Employees are required to leave the
premises immediately after the completion of their shift
and are not to return until the next scheduled shift.
WE WILL NOT maintain the following standard of con-
duct in our employee handbook:

18. Making false, vicious, profane or malicious state-
ments toward or concerning the Lafayette Park Hotel or
any of its employees.

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the rules quoted above, remove them
from our employee handbook, and advise the employees
in writing that the rules are no longer being maintained.

LAFAYETTE PARK HOTEL, A LIMITED CALI-
FORNIA PARTNERSHIP

1 See Tri-County Medical Center, 222 NLRB 1089 (1976).