Martin Luther Memorial Home, Inc.

National Labor Relations Board - Board Decisions

Nov 19, 2004

343 N.L.R.B. 646 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 75
646
Martin Luther Memorial Home, Inc. d/b/a Lutheran
Heritage Village-Livonia and Vivian A. Fore-
man. Case 7–CA–44877
November 19, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,
SCHAUMBER, WALSH, AND MEISBURG
On February 3, 2003, Administrative Law Judge Bruce
D. Rosenstein issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed cross-exceptions and an answering
brief.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
Applying the Board’s standard as set out in Lafayette
Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d
52 (D.C. Cir. 1999), the judge concluded that the Re-
spondent maintained three work rules that were unlawful,
but that three other work rules challenged by the General
Counsel were lawful.3 In Lafayette Park, the Board ex-

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all of the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 The judge dismissed the allegations that dietary employee Vivian
Foreman was unlawfully suspended and discharged in violation of Sec.
8(a)(3), finding that, although the General Counsel had met his Wright
Line burden of showing that these adverse actions were unlawfully
motivated, the Respondent had established that it would have taken the
same actions in the absence of Foreman’s protected activity. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert.
denied 445 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393, 399–403 (1983). Neither party has
excepted to the judge’s finding that the General Counsel met his burden
of demonstrating unlawful motivation. In adopting the judge’s conclu-
sion that the suspension and discharge were not unlawful, we assume
that the General Counsel did meet his burden and we agree with the
judge that, in any event, the Respondent showed that it would have
taken the same action absent Foreman’s protected conduct.
3 The rules that the judge found unlawfully overbroad expressly pro-
hibit:
Class I Offense: 14. Selling or soliciting anything in the building or
on company property (the premises) whether you are on duty or off
duty, unless you have been given written permission by the Adminis-
trator. . . . 17. Loitering on company property (the premises) without
permission from the Administrator. . . . Class III Offenses :5. Engag-
ing in unlawful strikes, work stoppages, slowdowns, or other interfer-
ence with production at any Martin Luther Memorial Home facility or
official business meeting.
The rules that the judge found lawful prohibit:
plained that to determine whether mere maintenance of
certain work rules violates Section 8(a)(1) of the Act,
“the appropriate inquiry is whether the rules would rea-
sonably tend to chill employees in the exercise of their
Section 7 rights.” The judge found that the Respondent’s
“no solicitation,” “no loitering,” and “no unlawful
strikes, work stoppages, slowdowns, or other interfer-
ence” rules were unlawfully overbroad or ambiguous and
that a reasonable employee could conclude that these
rules proscribed Section 7 activity. We adopt the judge’s
conclusion that these rules violate Section 8(a)(1), for the
reasons explained by the judge.4
In addition, the judge concluded that the Respondent’s
rules prohibiting “abusive and profane language,” “har-
assment,” and “verbal, mental and physical abuse” were
lawful because they were intended to maintain order in
the employer’s workplace and did not explicitly or im-
plicitly prohibit Section 7 activity. We agree with the
judge’s conclusion.
The Board has held that an employer violates Section
8(a)(1) when it maintains a work rule that reasonably
tends to chill employees in the exercise of their Section 7
rights. Lafayette Park Hotel, 326 NLRB 824, 825 (1998).
In determining whether a challenged rule is unlawful, the
Board must, however, give the rule a reasonable reading.
It must refrain from reading particular phrases in isola-
tion, and it must not presume improper interference with
employee rights. Id. at 825, 827. Consistent with the
foregoing, our inquiry into whether the maintenance of a
challenged rule is unlawful begins with the issue of
whether the rule explicitly restricts activities protected by
Section 7. If it does, we will find the rule unlawful.5

Class I Offenses: 1. Using abusive or profane language in the pres-
ence of, or directed toward, a supervisor, another employee, a resident,
a doctor, a visitor, a member of a resident’s family, or any other per-
son on company property (the premises). (Threats and intimidation are
covered by Class III, Rule 6. Verbal abuse is covered by Class III,
Rule 10.)
. . . .
Class II Offenses: 16. Harassment of other employees, supervisors
and any other individuals in any way. (“Sexual harassment” is covered
by Class III, Rule 15.)
Class III Offenses: 10. Verbally, mentally, or physically abusing a
resident, a member of a resident’s family, a fellow employee or a su-
pervisor under any circumstances. This includes physical and verbal
threats.
4 As noted infra, Chairman Battista finds the “no loitering” rule to be
lawful.
5 For example, a rule prohibiting employee solicitation, which is not
by its terms limited to working time, would violate Sec. 8(a)(1) under
this standard, because the rule explicitly prohibits employee activity
that the Board has repeatedly found to be protected by Sec. 7. Our
Way, 268 NLRB 394 (1983).
LUTHERAN HERITAGE VILLAGE-LIVONIA 647
If the rule does not explicitly restrict activity protected
by Section 7, the violation is dependent upon a showing
of one of the following: (1) employees would reasonably
construe 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.
The judge found that the Respondent’s rule prohibiting
“abusive or profane language” was lawful. He relied on
the District of Columbia Circuit’s decision in Adtranz
ABB Daimler-Benz Transp., N.A. Inc. v. NLRB, 253 F.3d
19 (D.C. Cir. 2001), denying enf. in pertinent part to 331
NLRB 291 (2000).6 In Adtranz, the court found that the
Board had misapplied its traditional analytic framework
as set forth in Lafayette Park Hotel in concluding that an
employer’s rule banning “abusive or threatening lan-
guage” was unlawfully overbroad. The court held that
the rule was lawful because it was clearly intended to
maintain order and avoid liability for workplace harass-
ment and could not reasonably be read to prohibit activ-
ity protected by Section 7.
We agree with the District of Columbia Circuit’s deci-
sion in Adtranz that a rule prohibiting “abusive lan-
guage” is not unlawful on its face. We reach the same
conclusion in regard to profane language.7 The court
recognized that employers have a legitimate right to es-
tablish a “civil and decent work place.” Adtranz, 253
F.3d at 25. The court also recognized that employers
have a legitimate right to adopt prophylactic rules ban-
ning such language because employers are subject to
civil liability under Federal and State law should they fail
to maintain “a workplace free of racial, sexual, and other
harassment” and “abusive language can constitute verbal
harassment triggering liability under state or federal
law.” Adtranz, supra, 253 F.3d at 27. In addition, we
agree with the court that there is no basis for a finding
that a reasonable employee would interpret a rule prohib-
iting such language as prohibiting Section 7 activity.
Applying these principles, we find that the Respondent
has not violated Section 8(a)(1) by maintaining the chal-
lenged rules prohibiting abusive or profane language.8
The rules do not expressly cover Section 7 activity. Nor

6 The General Counsel has excepted to the judge’s finding that the
Board embraced the court’s Adtranz decision in University Medical
Center, 335 NLRB 1318 (2001), enf. denied 335 F.3d 1079 (D.C. Cir.
2003). We find it unnecessary to pass on this exception in light of our
disposition of this case.
7 We recognize that, in some workplaces, the use of profane lan-
guage may be commonplace. If an employer, notwithstanding the rule,
generally tolerates such profanity, but then applies the rule to profanity
in a Sec. 7 context, such disparity may make the rule unlawful.
8 The analysis that follows also applies to the rules prohibiting “ver-
bal, mental and physical abuse.”
are verbal abuse and profane language an inherent part of
Section 7 activity. Adtranz v. NLRB, supra, 253 F.3d at
26. The question of whether particular employee activity
involving verbal abuse or profanity is protected by Sec-
tion 7 turns on the specific facts of each case. Id.; see
also Atlantic Steel, 245 NLRB 814, 816 (1979) (em-
ployee’s use of abusive language may be unprotected
depending on circumstances of case including nature of
outburst). An employee whose Section 7 activity in-
volves behavior of this type may be protected by Section
7 in some cases, but in other cases the conduct will be
unprotected. Id. Absent application of the rule to the
former conduct, we would not presume that the rule is
unlawful.
There is no evidence that the challenged rules have
been applied to protected activity or that the Respondent
adopted the rules in response to protected activity.
Rather, as in Adtranz, the rules serve legitimate business
purposes: they are designed to maintain order in the
workplace and to protect the Respondent from liability
by prohibiting conduct that, if permitted, could result in
such liability.
Further, a reasonable employee reading these rules
would not construe them to prohibit conduct protected by
the Act. Adtranz, supra. See also University Medical
Center v. NLRB, 335 F.3d 1079, 1088–1089 (D.C. Cir.
2003) (a reasonable employee would not read a rule pro-
hibiting “insubordination, refusing to follow directions,
obey legitimate requests or orders, or other disrespectful
conduct towards a [supervisor] or other individual” as
proscribing solicitation of union support or concerted
employee protest of supervisory activity because, read as
a whole, the rule applied only to insubordinate activity).
Where, as here, the rule does not refer to Section 7 activ-
ity, we will not conclude that a reasonable employee
would read the rule to apply to such activity simply be-
cause the rule could be interpreted that way. To take a
different analytical approach would require the Board to
find a violation whenever the rule could conceivably be
read to cover Section 7 activity, even though that reading
is unreasonable. We decline to take that approach.9
We agree with our colleagues that a rule can be unlaw-
ful if employees would reasonably read it to prohibit
Section 7 activity. We do not consider it necessary or
appropriate to decide in this case what rules in a future

9 We do not pass on the validity of Lafayette Park Hotel, supra, inso-
far as it held unlawful a rule prohibiting “false, vicious, profane, or
malicious statements.” The rule there was in the disjunctive, and thus
false statements were prohibited even if they were not malicious. The
Supreme Court has held that nonmalicious false statements can be
protected in the context of a union/management dispute. Linn v. Plant
Guard Workers Local 114, 383 U.S. 53 (1966).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD648
hypothetical case would be unlawful under this test. Suf-
fice it to say that, in the instant case, reasonable employ-
ees would not read the rule in that way. They would
realize the lawful purpose of the challenged rules. That
is, reasonable employees would infer that the Respon-
dent’s purpose in promulgating the challenged rules was
to ensure a “civil and decent” workplace, not to restrict
Section 7 activity.
Our dissenting colleagues argue that the maintenance
of the rules is unlawful because, in their view, the rules
could be applied to prohibit conduct that, under certain
circumstances, the Board would find protected under the
Act. We disagree. The rules are designed to deter em-
ployees from resorting to abusive or profane language in
the workplace. Section 7 protects the right of employees
to “self-organization, to form, join or assist labor or-
ganizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection.”10 We decline to as-
sume, as the dissent does, that employees will be de-
terred from engaging in protected activities simply be-
cause the use of abusive or profane language might sub-
ject them to discipline. Rather, we agree with the view
expressed by the D.C. Circuit in Adtranz that “it is pre-
posterous [to conclude] that employees are incapable of
organizing a union or exercising their other statutory
rights under the NLRA without resort to abusive or
threatening language.”11
Member Liebman suggests that the proper approach to
this issue is to mandate that employers specify in their
work rules that the rules do not apply to Section 7 activ-
ity. In essence, that approach requires an employer to
create an exception for abusive or profane language sim-
ply because it occurs in the context of Section 7 activity.
However, that is not the law. The use of abusive or pro-
fane language may be sufficiently egregious to deprive
an employee of the protection of the Act even if used
during the course of Section 7 activity.12 Under our col-
league’s logic, an employer may not maintain work rules
that prohibit abusive or profane language because there
are some instances in which the language is not egre-
gious. We decline to go so far. Work rules are necessar-
ily general in nature and are typically drafted by and for
laymen, not experts in the field of labor law. We will not

10 Sec. 7 also guarantees the right to refrain from those activities.
11 Adtranz, supra, 253 F.3d at 26.
12 See, e.g., Trus Joist MacMillan, 341 NLRB 369, 370–372 (2004)
(employee lost the protection of the Act because of his indefensible and
abusive conduct during a meeting with managers); Aluminum Co. of
America, 338 NLRB 20 (2002) (employee’s profane conduct caused
him to lose the protection of the Act).
require employers to anticipate and catalogue in their
work rules every instance in which, for example, the use
of abusive or profane language might conceivably be
protected by (or exempted from the protection of) Sec-
tion 7. Nor will we assume that the average employee
would read a general prohibition on abusive or profane
language as a ban on Section 7 activities. The approach
we adopt strikes a far more realistic balance.
For the same reasons, we also find the rule prohibiting
harassment to be lawful. Again, our dissenting col-
leagues say that the rule could be applied unlawfully to
prohibit protected activity, e.g. an employer could unrea-
sonably term “harassment” an effort to persuade a reluc-
tant employee to join the union. However, our concern is
whether the maintenance of the rule would reasonably
tend to chill employees in the exercise of their Section 7
rights. Our colleagues do not appear to dispute that some
instances of harassment are not protected by the Act.13
We see no justification for concluding that employees
will interpret the rule unreasonably to prohibit conduct
that does not rise to the level of harassment, or to pre-
sume that the Respondent will unreasonably apply it in
that manner.14
The dissent errs in asserting that our analysis considers
only the Respondent’s legitimate interests in maintaining
the challenged rules and ignores the rights of employees.
To the contrary, employees have a right to a workplace
free of unlawful harassment, and both employees and

13 Sec. 7 does not give employees an unlimited right regardless of
the circumstances to repeatedly solicit coworkers who have asked them
to desist. Our colleagues cite no cases in which such a right has been
recognized and we decline to do so here.
14 In Member Meisburg’s view, if conduct constitutes harassment
under the law, it is improper and an employer may ban it in the work-
place. Harassment is not protected by Sec. 7 or any other employment
statute.
What constitutes harassment and, therefore, unprotected conduct un-
der the Act, may not be the same as conduct constituting harassment
prohibited under employment statutes. Harassment in any given con-
text must be determined based on the facts and by balancing the respec-
tive legal rights to be protected or vindicated.
Under the Act, rights guaranteed by Sec. 7 must be balanced against
the reasonable expectations of employees not to be harassed. The
reasonableness of those expectations is judged, in turn, by the fact that
persons exercising Sec. 7 rights must be given the freedom to do so in a
manner that renders those rights real, not just theoretical. Such deter-
minations, however, are properly made only on the basis of allegations
of harassment backed up by a factual record, neither of which we have
here.
Here, we have only a rule prohibiting harassment. It is clear that the
rule is not targeted solely at union supporters, but rather directed to all
employees, regardless of their position on the issue of unionization.
There is no evidence that the rule has either the purpose or effect of
dissuading individuals from engaging in lawful union solicitation activ-
ity. The rule addresses only the Respondent’s legitimate business con-
cern of preventing its employees from being harassed or engaging in
harassment.
LUTHERAN HERITAGE VILLAGE-LIVONIA 649
employers have a substantial interest in promoting a
workplace that is “civil and decent.”15 Moreover, our
conclusion that the mere maintenance of the rules is law-
ful does not, of course, immunize from challenge specific
instances in which they are applied. Thus, the dissent’s
concern that the maintenance of the rules will “chill”
Section 7 activity is misplaced.
For all the foregoing reasons, we agree with the judge
that employees would not reasonably be discouraged
from engaging in Section 7 activity for fear of contraven-
ing the Respondent’s rules against “verbal abuse,” “abu-
sive or profane language,” or “harassment.”16 We there-
fore adopt the judge’s conclusion that the mere mainte-
nance of those rules did not violate Section 8(a)(1).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Martin Luther Memorial
Home, Inc. d/b/a Lutheran Heritage Village-Livonia,
Livonia, Michigan, its officers, agents, successors, and
assigns, shall take the actions set forth in the Order.
MEMBERS LIEBMAN AND WALSH, dissenting in part.
“The place of work is a place uniquely appropriate for
dissemination of views” by employees. NLRB v. Mag-
navox Co., 415 U.S. 322, 325 (1974). We appreciate the
desire of employers to maintain a civil workplace. And
we appreciate the potential liabilities imposed on em-
ployers by Federal and State statutes. We also recognize
that employers such as the Respondent nursing home
operate in highly sensitive environments, and have a
strong interest in protecting their elderly and infirm resi-
dents from abuse and inappropriate or disruptive conduct
on the part of their employees. Nonetheless, we are

15 Adtranz, supra, 253 F.3d at 25.
16 As noted above, we have adopted the judge’s finding that the Re-
spondent’s loitering rule violated Sec. 8(a)(1). The word “loiter” em-
braces both “to remain in or near a place in an idle or apparently idle
manner,” and “to be unnecessarily slow in leaving.” Webster’s Third
New International Dictionary. The Supreme Court has recognized that
prohibitions against loitering raise more questions than they answer.
See, e.g., City of Chicago v. Morales, 527 U.S. 41, 66 (1999)
(O’Connor, concurring) (“any person standing on the street has a gen-
eral ‘purpose’—even if it is simply to stand”). We therefore agree with
the judge that employees could reasonably interpret the rule to prohibit
them from lingering on the Respondent’s premises after the end of a
shift in order to engage in Sec. 7 activities, such as the discussion of
workplace concerns. We do not suggest, however, that a more nar-
rowly tailored rule might not survive scrutiny.
Chairman Battista concludes that the rule is lawful. It does not ex-
plicitly forbid Sec. 7 activity. Further, it was not promulgated in re-
sponse to Sec. 7 activity, and it has not been applied to such activity.
Finally, employees do not ordinarily, or reasonably, refer to their orga-
nizing activities as “loitering.” Accordingly, Chairman Battista would
not condemn the rule.
struck by the ambiguity of certain workplace rules—
intended, perhaps, to achieve decorum and peace—that
use words like “abusive” and “harassment.” The mean-
ing of these words is highly subjective: as the Board has
recognized, one person’s abuse may be mere annoyance
to another and no bother at all to a third.1 Surely a broad
reading of their terms places certain workplace rules in
serious tension with Section 7 rights protected by the
Act, a statute that turns on the right of employees to
communicate freely about their terms and conditions of
employment, at work. There will no doubt be instances
when an employee may consider communicating with a
co-worker, even at the risk of being unwelcome, to em-
phasize an opinion, or to prompt a desired course of ac-
tion that he is legitimately entitled to seek under the Act.
Without a defining context, or limiting language, the
rules at issue here could subject to discipline—and thus
inhibit—an angry conversation with a supervisor ex-
pressing dissatisfaction over an evaluation, a heated dis-
cussion between employees over the benefits of unioni-
zation, or a loud protest by employees over safety condi-
tions. But expressions of displeasure, and even anger,
are protected means of Section 7 communication.
I.
The Board has repeatedly recognized that mere main-
tenance of overbroad work rules can violate Section
8(a)(1). Lafayette Park Hotel, 326 NLRB 824, 825, 828
(1998); American Cast Iron Pipe Co., 234 NLRB 1126
(1978), enfd. 600 F.2d 132 (8th Cir. 1979). Moreover, a
rule that prohibits, inter alia, unprotected behavior may
be unlawful if it also contains prohibitions so broad that
they can reasonably be understood as encompassing pro-
tected conduct. See, e.g., Flamingo Hilton-Laughlin,
330 NLRB 287, 288 fn. 4, 294 (1999) (rule prohibiting
“false, vicious, profane, or malicious statements” unlaw-
ful because it prohibits statements that are “merely false”
and might include union propaganda); Lafayette Park
Hotel, supra, at 828. Here, the majority and the judge
have misapplied Board and Supreme Court law in con-
cluding that the Respondent’s “no abusive or profane
language,” “no harassment,” and “no verbal, mental, or
physical abuse” rules are lawful.2 For the reasons dis-
cussed below, we conclude that these rules are facially
unlawful.3

1 See, e.g., Ryder Transportation Services, 341 NLRB 761, 761–762
(2004).
2 We agree with the majority and the judge that the Respondent’s
maintenance of its “no solicitation,” “no loitering,” and “no interfer-
ence with production” rules violated Sec. 8(a)(1).
3 The Rules at issue describe the prohibited conduct as follows:
Class I Offenses :1. Using abusive or profane language in the pres-
ence of, or directed toward, a supervisor, another employee, a resident,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD650
In Lafayette Park Hotel, supra at 825, the Board rec-
ognized that determining the lawfulness of an employer’s
work rules requires balancing competing interests. The
Board thus relied upon the Supreme Court’s view, as
stated in Republic Aviation v. NLRB, 324 U.S. 793, 797–
798 (1945), that the inquiry involves “working out an
adjustment between the undisputed right of self-
organization assured to employees under the Wagner Act
and the equally undisputed right of employers to main-
tain discipline in their establishments.” 326 NLRB at
825. While purporting to apply the Board’s test in La-
fayette Park Hotel, the majority loses sight of this fun-
damental precept. Ignoring the employees’ side of the
balance, the majority concludes that the rules challenged
here are lawful solely because it finds that they are
clearly intended to maintain order in the workplace and
avoid employer liability. The majority’s incomplete
analysis belies the objective nature of the appropriate
inquiry: “whether the rules would reasonably tend to
chill employees in the exercise of their Section 7 rights.”
Our colleagues properly acknowledge that even if a
“rule does not explicitly restrict activity protected by
Section 7,” it will still violate Section 8(a)(1) if—among
other, alternative possibilities—”employees would rea-
sonably construe the language to prohibit Section 7 activ-
ity.” On this point, of course, the established test does
not require that the only reasonable interpretation of the
rule is that it prohibits Section 7 activity. To the extent
that the majority implies otherwise, it errs. Such an ap-
proach would permit Section 7 rights to be chilled, as
long as an employer’s rule could reasonably be read as
lawful. This is not how the Board applies Section
8(a)(1). See, e.g., Double D Construction Group, Inc.,
339 NLRB 303, 304 (2003) (“The test of whether a
statement is unlawful is whether the words could rea-
sonably be construed as coercive, whether or not that is
the only reasonable construction”).4

a doctor, a visitor, a member of a resident’s family, or any other per-
son on company property (the premises). (Threats and intimidation are
covered by Class III, Rule 6. Verbal abuse is covered by Class III,
Rule 10.)
. . . .
Class II Offenses: 16. Harassment of other employees, supervisors
and any other individuals in any way. (“Sexual harassment” is covered
by Class III, Rule 15.)
Class III Offenses : 10. Verbally, mentally, or physically abusing a
resident, a member of a resident’s family, a fellow employee or a su-
pervisor under any circumstances. This includes physical and verbal
threats.
4 Thus, to the extent the majority construes our dissenting view as
“requir[ing] the Board to find a violation whenever the rule [at issue]
could conceivably be read to cover Sec. 7 activity,” the majority is
mistaken. As explained below, we rely not only on the fact that the
The majority asserts that it has considered the employ-
ees’ side of the balance, in that it has found that the pur-
pose behind the Respondent’s rules—to maintain order
and protect itself from liability—is so clear that it will be
apparent to employees and thus could not reasonably be
misunderstood as interfering with Section 7 activity.
Although the Respondent’s assertedly pure motive in
creating such rules may be crystal clear to our col-
leagues, it may not be as obvious to the Respondent’s
employees, especially in light of the other unlawful rules
maintained by the Respondent. Rather, for reasons ex-
plained below, we find that the challenged rules are fa-
cially ambiguous. The Board construes such ambiguity
against the promulgator. Norris/O’Bannon, 307 NLRB
1236, 1245 (1992), quoting Paceco, 237 NLRB 299 fn. 8
(1978). The absence of evidence that the Respondent has
actually enforced the rules against employees for engag-
ing in protected activity does not, contrary to our col-
leagues’ view, insulate them from the proscriptions of
the Act. As the judge recognized with respect to the Re-
spondent’s unlawful no-loitering rule, the mere presence
of overly broad rules reasonably tends to discourage em-
ployees from engaging in protected activity that they
could reasonably believe to be encompassed by the rules,
regardless of the Respondent’s motives or enforcement
history. NLRB v. Beverage-Air Co., 402 F.2d 411, 419
(4th Cir. 1968).
II.
The Respondent’s rule prohibiting “abusive or profane
language . . . directed toward a supervisor” and its rule
prohibiting, inter alia, “verbally . . . abusing . . . a super-
visor” are ambiguous and hence overbroad. The former
does not define “abusive language,” and the latter does
not define “verbal abuse.” Neither rule provides specific
examples of the prohibited speech. Thus, employees
might reasonably be uncertain whether vehemently con-
demning a supervisor’s perceived unfair treatment of a
co-worker would be “abusive” in the unexplained sense
of the rules. Or an employee might reasonably fear that
using words like “scab” in the course of union activity
would result in discipline, although such language is
clearly protected under the Act. See, e.g., Letter Carri-
ers v. Austin, 418 U.S. 264, 268, 277–278 (1974) (citing
Linn v. Plant Guard Workers, Local 114, 383 U.S. 53,
60–61 (1966)). The very fact that the Respondent main-
tains two distinct rules prohibiting verbal abuse is likely
to leave the employees in doubt as to what behavior is

overbroad rules at issue here could reach activity that is protected, but
also on the particular language of the rules, the Respondent’s mainte-
nance of other facially unlawful rules, and the existence of seemingly
duplicative rules as providing a context in which employees would
reasonably construe the rules as interfering with their Sec. 7 activity.
LUTHERAN HERITAGE VILLAGE-LIVONIA 651
comprehended by the rules and whether protected activ-
ity might contravene one or both. Such uncertainty dis-
courages employees from the kind of activity that is pro-
tected by Section 7.
The Respondent’s “no harassment” rule is equally
problematic. The rule expressly prohibits “[h]arassment
of other employees, supervisors and any other individu-
als in any way.” Nothing in the phrasing of the rule lim-
its its breadth. Thus, contrary to our colleagues’ view, it
is not at all apparent that the rule targets only conduct
that would result in employer liability. In fact, the rule
expressly states that “sexual harassment” is covered by a
different rule. And, a separate rule prohibits “threaten-
ing, intimidating, or coercing employees.” It is thus clear
that the “no harassment” rule does not address that kind
of conduct. Without the limiting words of “sexual har-
assment” or “threats” to arguably narrow the meaning of
the “no harassment” rule, what is left is a very broad,
vague, and highly subjective notion of “harassment” that
places the rule in statutory jeopardy. First Student, Inc.,
341 NLRB 136, 137 fn. 4 (2004), citing Liberty House
Nursing Homes, 245 NLRB 1194, 1197 (1979). Indeed,
the language of the rule expressly insists on the broadest
possible meaning of the conduct prohibited.
The term “harassment” used in this undefined way
could reasonably be understood to include an employee’s
repetition of an unwelcome message (for example, “Vote
Yes”) to an unsympathetic coworker, even if the speaker
has no malicious intent. See Advance Transportation
Co., 310 NLRB 920, 925 (1993) (employer’s “no har-
assment, intimidation” rule unlawful because it is “vague
and ambiguous and so overly broad as to fail to define
permissible conduct thereby fortifying [the employer]
with power to define its terms and inhibit employees in
exercising rights under Section 7 of the Act”); see also
Whirlpool Corp., 337 NLRB 726, 727, 741 (2002) (em-
ployer’s disciplining of employee for “harassment” based
on his pro-union discussions with coworkers unlawful
because employer “use[d] harassment and intimidation as
mere shibboleths to justify interference with rights guar-
anteed employees under the Act”); Frazier Industrial
Co., 328 NLRB 717, 718–719 (1999) (employer violated
Act by discharging employee who repeatedly solicited
coworkers; persistent solicitation did not amount to un-
protected harassment, despite co-workers’ complaints),
enfd. 213 F.3d 750 (D.C. Cir. 2000).5 Compare BJ’s

5 The majority asserts that “Sec. 7 does not give employees an
unlimited right regardless of the circumstances to repeatedly solicit
coworkers who have asked them to desist.” Whether or not employees’
rights are “unlimited . . . regardless of the circumstances”—a claim we
certainly do not make—Board law has long been clear that “[p]ersistent
union solicitation is an activity protected by the Act even when it dis-
Wholesale Club, 318 NLRB 684, 684 fn. 2 (1995) (warn-
ing issued to employee for violating employer’s “no har-
assment” rule lawful where rule itself was not in dispute
and the employee had previously been disciplined for
harassment based on misconduct not connected with un-
ion activity). Thus, the Respondent’s “no harassment”
rule is unlawfully overbroad.
Our colleagues insist, without real explanation, that a
reasonable employee simply could not interpret the Re-
spondent’s rules to cover protected activity, at least ab-
sent enforcement. But, for the reasons we have offered,
employees might well be chilled by the rules, and thus no
occasion for enforcement would ever arise. This would
be true even if a reasonable employee necessarily would
recognize the original purpose of the rules, for he would
have no assurance that the rules could not be enforced
against protected activity.
III.
The majority and the judge rely on the District of Co-
lumbia Circuit’s decision in Adtranz ABB Daimler-Benz
Transportation v. NLRB, 253 F.3d 19 (D.C. Cir. 2001),
as the basis for their analysis of the rules at issue here.
Contrary to the judge’s statement, the Board has not pre-
viously embraced the District of Columbia Circuit’s de-
cision in Adtranz. See Community Hospitals of Central
California, 335 NLRB 1318, 1321 (2001), enf. denied
335 F.3d 1079, 1088–1089 (D.C. Cir. 2003) (finding
challenged work rule, which prohibited, inter alia, “disre-
spectful conduct,” unlawful in part because it was even
broader than the more limited rule in Adtranz). And,
unlike our colleagues, we would not adopt it here. In
particular, we respectfully disagree with the court’s view
that finding a rule against abusive language unlawfully
overbroad amounts to assuming that employees cannot
engage in protected activity without using such language.
Adtranz, 253 F.3d at 26–27. Rather, such a finding re-
flects the workplace realities that, in the course of pro-
tected activity, tempers often flare, emotions run high,
and employees sometimes do use language that is abu-
sive but not so egregious as to cost them the protection of
the Act.6 Section 7 protection is not limited to amiable

turbs or annoys the individuals being solicited.” RCN Corp., 333
NLRB 295, 300 (2001). See, e.g., Arcata Graphics, 304 NLRB 541,
542 (1991) (holding unlawful employer’s request that employees report
“abusive treatment” by union solicitors because it was tantamount to a
request to report “persistent attempts to persuade”); Bank of St. Louis,
191 NLRB 669, 673 (1971), enfd. 456 F.2d 1234 (8th Cir. 1972) (hold-
ing unlawful employer’s request that employees report “constant badg-
ering” by union solicitors).
6 See, e.g., Winston-Salem Journal, 341 NLRB 124 (2004); Felix In-
dustries, Inc., 339 NLRB 195, 197 fn. 8 (2003); Thor Power Tool Co.,
148 NLRB 1379, 1380–1381 (1964). In addition to the impassioned
exchanges that, experience teaches, regularly occur in the heat of par-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD652
or decorous communications. Rules against abusive lan-
guage could reasonably discourage employees from Sec-
tion 7 activity because they inhibit communication that
would be protected under the Act.
Although we agree with our colleagues and the District
of Columbia Circuit that employers have a legitimate
interest in protecting themselves by maintaining rules
that discourage conduct that might result in employer
liability, Adtranz, 253 F.3d at 27, that interest is appro-
priately subject to the requirement that employers articu-
late those rules with sufficient specificity that they do not
impinge on employees’ free exercise of Section 7 rights.
Here, the Respondent has not done so.7
As the Supreme Court recognized in Linn, citing New
York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964),
“debate . . . should be uninhibited, robust, and wide-
open, and . . . may well include vehement, caustic and
sometimes unpleasantly sharp attacks.” Contrary to our
colleagues, we find that the ill-defined scope of the Re-
spondent’s “verbal abuse” and “abusive language” rules,
as well as its “no harassment” rule, would reasonably
tend to cause employees to “steer wide of the prohibited
zone” and refrain from voicing disagreement with their
terms and conditions of employment or vigorously at-
tempting to organize skeptical coworkers. See Trades-
men International, 338 NLRB 460, 465 (2002) (Member
Liebman, dissenting). We therefore would find that the
Respondent’s mere maintenance of those rules violated
Section 8(a)(1).
Judith A. Schulz, Esq., for the General Counsel.
Jeffrey N. Silveri, Esq., of Ann Arbor, Michigan, for the Re-
spondent-Employer.

ticipation in Sec. 7 activity, profanity and abusive language are com-
mon occurrences in many workplaces. See, e.g., “On-the-Job Cursing:
Obscene Talk is Latest Target of Workplace Ban,” Wall Street Journal
(May 8, 2001). In turn, cases are legion in which employers have
seized on profanity as a pretext for getting rid of employees who en-
gage in protected activity. We need not cite them all here. See, e.g.,
Wal-Mart Stores, Inc., 341 NLRB 796, 801, 806–808 (2004); United
Parcel Service, 340 NLRB 776, 777–778 (2003); Sunbelt Mfg., Inc.,
308 NLRB 780, 787 (1992), enfd. mem. in part 996 F.2d 305 (5th Cir.
1993); Smith Auto Service, 252 NLRB 610, 613 (1980). Contrary to
our colleagues’ view then, it is the realities of the workplace, rather
than any unreasonable presumption on our part, which suggest that
employees reasonably would be constrained in their protected activity
by a workplace rule that broadly prohibits profane or abusive language.
7 Member Liebman observes that if the prohibited conduct is of a
kind so general as to imply that protected activity may be encompassed,
an employer can easily eliminate the ambiguity by adding a statement
to its rule that the prohibition does not apply to conduct that is pro-
tected under the National Labor Relations Act. See Safeway, Inc., 338
NLRB 525, 528 (2002) (Member Liebman, dissenting). Here, the
Respondent has not done so.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on November 7, 2002,1 in Detroit, Michi-
gan, pursuant to a complaint and notice of hearing (the com-
plaint) issued by the Regional Director for Region 7 of the Na-
tional Labor Relations Board (the Board) on May 29. The
complaint, based on original and amended charges filed by
Vivian A. Foreman (the Charging Party or Foreman), alleges
that Martin Luther Memorial Home, Inc. d/b/a Lutheran Heri-
tage Village-Livonia (the Respondent or Employer) has en-
gaged in certain violations of Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act). The Respondent filed
a timely answer to the complaint denying that it committed any
violations of the Act.
Issues
The complaint alleges that the Respondent by issuance and
distribution of its employee work rules in October 2001 has
maintained six overly broad rules in violation of Section 8(a)(1)
of the Act. Additionally, the complaint alleges that the Re-
spondent suspended on January 9, and thereafter terminated the
Charging Party on January 23, in violation of Section 8(a)(1)
and (3) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in providing ex-
tended health care at its Livonia facility, where it annually had
gross revenues in excess of $1 million. During that same pe-
riod, Respondent purchased goods and materials valued in ex-
cess of $50,000 directly from suppliers located outside the State
of Michigan, and had those goods shipped directly to its
Livonia facility from points located outside the State of Michi-
gan. 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 and that Local 79, Service Employees Inter-
national Union (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICE
A. Background
Foreman started employment with Respondent on July 12,
1999, as a dietary cook. Commencing in May 2000 and up to
Foreman’s termination on January 23, she was supervised by
Food Service Director Stephanie Carter. The Union initiated an
organizing drive at the Respondent in February 2001. Foreman
supported the Union and went to a number of organizing meet-
ings but was not one of the leading union adherents during the
course of the campaign. She did, however, serve as the union
observer at the March 22, 2001 Board-supervised election that

1 All dates are in 2002 unless otherwise indicated.
LUTHERAN HERITAGE VILLAGE-LIVONIA 653
the Union won. Foreman was selected as the union steward for
the dietary employees shortly after the election. Thereafter,
Foreman served on the Union’s bargaining committee that
commenced initial contract negotiations with the Respondent in
June 2001. Respondent’s administrator, Mel Scalzi, repre-
sented the Employer during the course of these negotiations.
To date, the parties have been unable to finalize a collective-
bargaining agreement. Accordingly, no formal grievance pro-
cedure exists that results in binding arbitration. Rather, the
parties utilize an informal grievance procedure when con-
fronted with employee problems and disciplinary matters.
At all times material, the Respondent has adhered to a series
of work rules that is given to employees during their initial
new-hire orientation (Jt. Exh. 1). The purpose of the work rules
is to protect the rights of everyone, ensure cooperation, and
define behavioral expectations to allow an atmosphere of pro-
viding good care of the residents entrusted to their care. The
rules and penalties are divided into three (3) classes based on
the seriousness of the infraction. Each class represents progres-
sive discipline for repeated infractions. As set forth in the work
rules, the penalty for class 1 offenses, or a combination of class
1 offenses is a written reprimand for the first and second of-
fense, a 1-day suspension without pay for the third offense and
discharge for the fourth offense. In practice however, an em-
ployee is able to incur a third written reprimand and discharge
does not occur until an employee commits a fifth offense. For
class III offenses, an employee can be given up to a 10-day
suspension without pay pending investigation followed by dis-
charge if the allegation is found to be valid. All penalties as-
sessed for violations of the work rules will be written in an
employee discipline record and one copy is provided to the
employee. Each offense will be recorded in the employee’s
record for a period of 1 year, if the offense is a minor offense
not involving suspension.
B. The Facts
On March 28, 2001, Foreman received her first class I writ-
ten reprimand for failing to punch her timecard within a 30-day
time period on two separate occasions. Foreman did not protest
the discipline and signed the employee record form (GC Exh.
5).
On July 22, 2001, Carter gave Foreman her second class I
written reprimand for not notifying her that the refrigerator was
not working properly causing large quantities of food to spoil.
All employees on the afternoon shift, including Foreman, were
disciplined for this infraction. Foreman signed the employee
record form without protest. (GC Exh. 6.)
On or about December 6, 2001, employee Christy Brown
was terminated for receiving her fifth class I infraction. Carter
requested that Foreman represent Brown in her informal griev-
ance protesting the termination since Foreman was not at work
when Carter observed Brown sleeping in her car during duty
hours. Thus, Carter believed that Foreman would not have any
bias regarding the issue, as the alternate steward was present
when the discipline was given to Brown and observed the
events in question. A grievance meeting took place on or about
December 12, 2001, in which Foreman represented Brown.
After heated arguments from both sides, Carter was not per-
suaded that Brown should be given another chance and the
termination was upheld.
On December 18, 2001, Carter conducted an in-service
meeting with employees on her staff including Foreman. An
agenda for the meeting was prepared and Carter memorialized a
summary of the meeting noting that pots and pans should be
properly washed and not left overnight, the trash should be
taken out, and employees should be courteous to one another (R
Exh. 1).
On December 19, 2001, coworker Angela Johnson com-
plained to Carter that Foreman left a scorched pot in the sink
overnight. The pot was left in the sink on the same day of the
earlier conducted in-service meeting and Carter determined that
a written reprimand was appropriate. Accordingly, Foreman
was given her third class I reprimand. While Foreman refused
to sign the discipline form, she did not contest the fact that she
left a scorched pot in the sink overnight. (GC Exh. 2.) On the
same day, Foreman reported to Carter that fellow employee
Sandra Davis had left debris and leftovers in the sink overnight.
Since this incident took place immediately after the in-service
meeting held the preceding day, Carter gave Davis a written
class I reprimand. (R. Exh. 6.)
On January 6, Foreman was on duty as the afternoon cook.
She was in a hurry to leave that day because it was her birthday
and she had a church function to attend that evening. Foreman
acknowledged that she might have left the garbage uncovered
in the trashcan and the lid on the food service counter. Carter
summoned a witness to verify that garbage had been left un-
covered and noted that Foreman also left prune juice on the
counter rather then placing it in the refrigerator. Accordingly,
Carter issued a fourth Class I written reprimand to Foreman
(GC Exh. 7).
On January 9, employee Davis informed Carter that Foreman
was the cook on duty January 8, and left for the day without
preparing the dessert for the residents that evening. After veri-
fying this incident, Carter prepared a class I written reprimand
for Foreman. The discipline record form noted that this was the
fifth class I infraction with a penalty of termination (GC Exh.
8). On the same day, Foreman reported to Carter that coworker
Angela Johnson left utensils in a mixing bowl rather then air
drying them and putting them away at the end of the shift.
Accordingly, Carter issued a class I written reprimand to John-
son (R. Exh. 7).
On January 8, Scalzi was at company headquarters and not
present at the facility. He received a telephone call from direc-
tor of nursing Denise Hubbard that a hostile work environment
had erupted in the kitchen and a number of employees includ-
ing Foreman were involved in this incident. Scalzi returned to
the facility on January 9, and after discussions with his staff
decided to have a meeting with Foreman to discern the nature
of the problems in the kitchen. Scalzi was also informed by
Carter that she had just prepared a fifth class I warning for an
incident involving Foreman that occurred on January 8. Before
the meeting could be convened, Foreman informed her supervi-
sor that she was ill and needed to leave the facility. Instead of
going directly home, Foreman proceeded to meet with her Pas-
tor who helped console her. After the discussions with her
Pastor, Foreman called the facility indicating that she felt better
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD654
and was available to attend the meeting. Scalzi informed her
that a union representative could attend the meeting to assist
her but Foreman determined that it was not necessary.
The meeting took place around 4 p.m., on January 9, in the
conference room. Foreman was informed that three employees
provided statements to the Respondent that asserted she had
uttered profanity in their presence and was harassing them (R.
Exhs. 3, 4, and 5). Hubbard informed Foreman that the em-
ployees were considering filing a harassment suit against her
and under the circumstances Scalzi was required to suspend her
for a period of up to 10 days while an investigation was con-
ducted. Foreman stopped Hubbard at that point so she could
get someone to witness what was being said. Foreman left the
meeting and returned shortly thereafter with nurse Angela
Howard to be her witness.2 Hubbard then apprised Foreman
that Respondent’s records confirmed that she recently received
her fifth class I written reprimand and that was grounds for
termination. Scalzi gave Foreman copies of the three written
employee statements that were attached to the employee disci-
pline form (GC Exh. 4) and inquired whether she wanted to
submit a written statement. Foreman thereafter submitted a
written statement to Scalzi after consulting with Howard (GC
Exh. 3). Hubbard showed Foreman the five previously written
reprimands during the meeting and Scalzi testified that he faxed
copies of these documents and the employee statements to the
Union.
Before the above meeting was held on January 9, Scalzi dis-
cussed the problems in the kitchen with several employees.
Based on these preliminary discussions and his review of the
three employee’s written statements, he decided that it was
necessary to suspend Foreman pending investigation. After the
suspension on January 9, Scalzi spoke to the entire kitchen staff
to assess the problems in the kitchen and what role, if any,
Foreman played (GC Exh. 11). Likewise, around that time,
Scalzi received a telephone call from the Union seeking to
schedule a meeting regarding Foreman. Initially, the meeting
was set for January 15, but was rescheduled to January 23, due
to a conflict in the schedule of the union representative.
While Scalzi had made a final decision to terminate Foreman
on January 21, primarily based on the five infractions and her
involvement with the problems in the kitchen, he waited to
meet with the Union on January 23, to convey his reasons for
the termination. After the meeting, Scalzi telephoned Foreman
to apprise her that she would be terminated effective January
23. A letter to this effect was mailed to Foreman on January 23
(GC Exh. 9).
C. The 8(a)(1) Allegations
The General Counsel alleges in paragraph 6 of the complaint
that the Respondent has maintained six overly broad work
rules.
The Board’s standard for analyzing workplace rules like
these is set out in Lafayette Park Hotel, 326 NLRB 824, 825
(1998), enfd. 203 F.3d 52 (D.C. Cir. 1999), as follows:

2 Although Scalzi informed Foreman that Howard could not repre-
sent her in the role of a union representative because she was a supervi-
sor, he nevertheless permitted Howard to remain in the meeting to
assist Foreman and serve as her witness.
In determining whether the mere maintenance of rules such as
those at issue here violates Section 8(a)(1), the appropriate in-
quiry is whether the rules would reasonably tend to chill em-
ployees in the exercise of their Section 7 rights. 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 practice, even absent evidence of enforcement.
1. Class I, Rule # 1
This rule provides:
Using abusive or profane language in the presence of, or di-
rected toward, a supervisor, another employee, a resident, a
doctor, a visitor, a member of a resident’s family, or any other
person on company property (the premises).
The subject rule is strikingly similar to a rule found unlawful
in Lafayette Park Hotel. That rule precluded employees from
making false, vicious, profane, or malicious statements toward
or concerning the Lafayette Park Hotel or any of its employees.
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 overbroad.
In a later case interpreting handbook rules, however, the
Board in Community Hospitals of Central California, 335
NLRB 1318 (2001), adopted language from the United States
District of Columbia’s Circuit decision in Adtranz ABB Daim-
ler-Benz Transportation, N.A., Inc. v. NLRB, 253 F.3d 19 (D.C.
Cir. 2001), vacating in pertinent part 331 NLRB 291 (2000). In
that case, the Court found that a work rule banning the use of
“abusive or threatening language to anyone on company prem-
ises” was not invalid or violative of the Act. Moreover, the
Court found that abusive language in the workplace could con-
stitute verbal harassment, triggering employer civil liability
under both Federal and State law for failure to maintain a work-
place that is free of harassment. Further, the Court found that
threatening language in the workplace carries with it the poten-
tial for violent confrontations, again triggering employer liabil-
ity.
Under these circumstances, I find that the Respondent’s
maintenance of class I, rule 1 clarifies for employees that the
rules are designed to prohibit serious, employment-related mis-
conduct and not to prohibit protected Section 7 activities. Ac-
cordingly, the subject rule does not violate Section 8(a)(1) of
the Act.
2. Class I, rule 14
This rule provides:
Selling or soliciting anything in the building or on company
property (the premises) whether you are on duty or off duty,
unless you have been given written permission by the Admin-
istrator.
The General Counsel contends that employees may reasona-
bly believe they must seek Employer permission to engage in
Section 7 conduct while on company property. I agree with
this contention. Given its present form, it is not “far-fetched”
LUTHERAN HERITAGE VILLAGE-LIVONIA 655
that reasonable employees could conclude that some Section 7
activity could be covered by this rule. In this regard, the rule
prohibits soliciting anything in the building whether an em-
ployee is on or off duty. It makes no allowances for solicitation
while an employee is on break, before or after regular duty
hours and does not exclude from its coverage the cafeteria or
parking areas. Moreover, the rule requires employees to obtain
the employer’s permission before engaging in solicitation.
Such a requirement as a precondition to engaging in protected
concerted activity on an employee’s free time and in nonwork
areas is unlawful. Brunswick Corp., 282 NLRB 794 (1987).
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.
In my view, such a rule has a reasonable tendency to chill
employees in the exercise of their Section 7 rights and its main-
tenance violates Section 8(a)(1) of the Act.
3. Class I, rule 17
This rule provides:
Loitering on company property (the premises) without per-
mission from the Administrator.
Section 7 of the Act protects employee communications with
other employees and even customers about terms and condi-
tions of employment. The term “loitering” is undefined and
can reasonably be read to prohibit off-duty employees from
engaging in protected communications with other employees in
nonworking areas of the Respondent’s property. Moreover, the
term premises is not defined and employees could reasonably
conclude that they could not engage in protected communica-
tions in the parking lot either before or after work. Even if the
rule was established for legitimate business purposes, it is not
so clear to define what is proscribed and eliminate any ambigu-
ity as to whether protected activity is covered. It is this ambi-
guity that chills reasonable employees in the exercise of their
Section 7 rights.3
Accordingly, I find that the Respondent’s maintenance of
this rule in its employee handbook is a violation of Section
8(a)(1) of the Act.
4. Class II, rule 16
This rule provides:
Harassment of other employees, supervisors and any other in-
dividuals in any way.
In my opinion, this rule is unambiguous on it face. It does
not prohibit Section 7 activity. It addresses the Respondent’s
business concern to maintain discipline and orderly, productive,
and respectful relations between employees, managers, and
supervisors. Because the rule does not explicitly or implicitly
prohibit Section 7 activity, I believe that employees could not
reasonably fear that their protected right to communicate their

3 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”).
views regarding the union or their wages and conditions of
employment would expose them to potential discipline pursuant
to the rule. Additionally, I note that the Respondent has not
enforced the rule or by any other conduct led employees rea-
sonably to believe that the rule prohibited Section 7 activity. In
this regard, the General Counsel did not present any evidence
that the above rule was relied upon by the Employer to disci-
pline employees during the union organizing campaign in Feb-
ruary and March of 2001.
Under these circumstances, I would not find that this rule
violates Section 8(a)(1) of the Act.
5. Class III, rule 5
This rule provides:
Engaging in unlawful strikes, work stoppages, slowdowns, or
other interference with production at any Martin Luther Me-
morial Home facility or official business meeting.
In my opinion, this rule can reasonably be read as encom-
passing Section 7 activity. For example, the rule as written,
would prohibit employees from engaging in protected con-
certed activities concerning wages, conditions of employment,
or safety issues if it interfered with production or a business
meeting. It could be construed to prohibit employees from
voicing concerns over terms and conditions of employment
during a group meeting and if the concerns escalated they could
interfere with production. While the first portion of the rule
regarding unlawful strikes, work stoppages, and slowdowns
protects legitimate business interests, the later portion of the
rule is overly broad and has a tendency to chill employees in
the exercise of their protected rights. Where a rule is likely to
have a chilling effect on Section 7 rights, the Board may con-
clude that its maintenance is an unfair labor practice, even ab-
sent evidence of enforcement. See NLRB v. Vanguard Tours,
981 F.2d 62, 67 (2d Cir. 1992), citing Republic Aviation v.
NLRB, 324 U.S. 803 fn. 10 (1945).
Therefore, Respondent’s maintenance of this rule violates
the Act.
6. Class III, rule 10
This rule provides:
Verbally, mentally or physically abusing a resident, a member
of a resident’s family, a fellow employee or a supervisor un-
der any circumstances. This Includes physical and verbal
threats.
In my opinion, this rule is unambiguous on its face. It does
not prohibit Section 7 activity. It addresses the Respondent’s
business concern to maintain discipline and orderly, productive,
and respectful relations between employees, managers, and
supervisors. In the particular circumstances of this case it was
relied upon to discipline Foreman due to her use of profanity in
front of several coworkers and verbally abusing a supervisor by
using profanity in reference to her (GC Exh.4 and R. Exhs. 3, 4,
and 5).
This rule does not expressly prohibit protected activity, nor
could it reasonably be interpreted to do so. Further, there is no
evidence that any employee has actually been prevented, dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD656
couraged, or restrained by this rule in any manner from exercis-
ing rights protected by Section 7.
Based on the forgoing, I would not find that Respondent’s
maintenance of this rule violates the Act. See Tradesmen In-
ternational, 338 NLRB 460 (2002). (Rule Prohibiting “Slan-
derous or Detrimental Statements” does not chill employees in
the exercise of their Section 7 rights.)
D. The 8(a)(1) and (3) Allegations
1. The suspension
The General Counsel alleges in paragraph 7(a) of the com-
plaint that the Respondent suspended the Charging Party on
January 9.
In Wright Line, 251 NLRB 1083 (1980), enfd, 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
must make a prima facie showing sufficient to support the in-
ference that protected conduct was a “motivating factor” in the
employer decision. On such a showing, the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The United
States Supreme Court approved and adopted the Board’s
Wright Line test in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1993). In Manno Electric, 321
NLRB 278 fn. 12 (1996), the Board restated the test as follows.
The General Counsel has the burden to persuade that antiunion
sentiment was a substantial or motivating factor in the chal-
lenged employer decision. The burden of persuasion then shifts
to the employer to prove its affirmative defense that it would
have taken the same action even if the employee had not en-
gaged in protected activity.
For the following reasons, I find that the General Counsel
has made a strong showing that the Respondent was motivated
by antiunion considerations in suspending Foreman. The evi-
dence establishes that Foreman was the union observer during
the Board-conducted election in March 2001, was elected union
steward shortly thereafter and participated in collective-
bargaining negotiations as a member of the Union’s bargaining
team. Moreover, Foreman served as the union representative of
coworker Brown during heated discussions surrounding her
suspension and termination.
The burden shifts to the Respondent to establish that the
same action would have taken place even in the absence of the
employee’s protected conduct.
Scalzi, who was terminated from Respondent on March 5,
impressed me as a credible witness who had a command of the
facts and when necessary referred to a pocket calendar to con-
firm important dates and meetings with the Charging Party. He
referred to Carter as a bright capable supervisor who was very
reliable and respected by her subordinate employees. Accord-
ing to Scalzi, while Carter was strict she treated everyone fairly
but often disciplined employees more frequently than other
supervisors.
Scalzi learned about an incident in the kitchen while he was
at company headquarters on January 8. Hubbard, who was
acting on Scalzi’s behalf, telephoned him to report that a num-
ber of employees had complained about discord and a hostile
work environment in the kitchen instigated by Foreman. Upon
his return to the facility on January 9, Scalzi talked to several
employees in the kitchen about the problem and reviewed three
written statements prepared by Carter and two employees that
detailed the problems they were encountering with Foreman
and her use of profanity in their presence and when referring to
Carter. Since Foreman’s actions, if true, clearly violated a class
III work rule (rule 10), Scalzi determined to suspend her pend-
ing investigation. According to Scalzi, he needed to get Fore-
man out of the kitchen to calm down the situation.
Scalzi convened a meeting with Foreman during the after-
noon of January 9. I find that Scalzi afforded Foreman the
opportunity to be represented by the Union and provided the
Union and her copies of the three employee statements assert-
ing that she had engaged in violations of the class III work rule.
During the course of the meeting, Hubbard explained both the
facts surrounding the harassment allegations as well as the five
class I infractions Foreman received within a 1-year period.
Scalzi also provided Foreman the opportunity to submit a writ-
ten statement summarizing her version of the facts.
The General Counsel argues that the suspension was visited
upon Foreman due to her engaging in representational activities
on behalf of her coworkers, primarily her representation of
Brown. Indeed, the General Counsel opines that the discipline
given to Foreman after her representation of Brown was the
cause of her suspension and subsequent termination. Foreman
testified that on December 18, she spoke to Scalzi about the
deteriorating relationship that existed between her and Carter
and on the same day she spoke to Carter concerning their
strained relationship since she represented Brown. Several
days later, Foreman asserts that she again met with Carter with
her union steward to discuss their strained relationship. The
General Counsel did not call the union steward to confirm this
second meeting. Based on my review of their overall credibil-
ity, I am inclined to believe Scalzi and Carter who both denied
that they met with Foreman to discuss their deteriorating and
strained relationship. Both Scalzi and Carter impressed me as
reliable witnesses whose testimony had a ring of truth to it.
Foreman, on the other hand, tended to blame all of her prob-
lems on Carter without accepting any responsibility for her own
actions. She repeatedly denied that she was counseled about
preparing desserts for the evening meal or being apprised about
meal quality procedures when written records contradict her
(GC Exhs. 2, 7, 8, and R. Exh. 1).
For all of the above reasons, I find that Foreman was sus-
pended for legitimate business reasons unrelated to her repre-
sentation of Brown. In this regard, Scalzi independently spoke
to several employees who had witnessed the discord in the
kitchen on January 8, and also reviewed three written state-
ments prepared by employees who asserted that Foreman had
used profanity in their presence when referring to Carter.
Under these circumstances, I recommend that the allegations
concerning the suspension be dismissed and that no 8(a)(1) and
(3) violation be found.
LUTHERAN HERITAGE VILLAGE-LIVONIA 657
2. The termination
The General Counsel alleges in paragraph 7(b) of the com-
plaint that on January 23 the Respondent terminated the Charg-
ing Party.
Applying the Wright Line guidelines discussed above, I find
that the General Counsel has made a strong showing that the
Respondent was motivated by antiunion considerations in ter-
minating Foreman.
In shifting the burden to the Respondent, I find that the same
action would have been taken even in the absence of the em-
ployee’s protected conduct. In this regard, I note that the first
two class I infractions visited upon Foreman occurred well in
advance of the General Counsel’s assertions that matters went
down hill after her representation of Brown in early December
2001 (GC Exhs. 5 and 6). The next three written reprimands
took place on December 19, 2001, January 6 and 8. With re-
spect to the December 19, 2001 reprimand I note that it imme-
diately followed the December 18, 2001, in-service meeting
where all employees including Foreman were instructed on the
correct procedures for the cleaning of pots and pans and it was
brought to Carter’s attention by a coworker that Foreman had
left a dirty and scorched pot in the sink. Concerning the disci-
pline given to Foreman on January 6, it involved two infrac-
tions that Carter credibly testified could have been written in-
dependently but in using her discretion they were written as one
infraction, avoiding giving Foreman a fifth class I written rep-
rimand on that date. This represents further support that Carter
was not casting about to get Foreman because of her prior rep-
resentation of Brown. Lastly, a coworker apprised Carter that
Foreman did not prepare her desserts for the evening meal and
that led to the January 8 written reprimand for that infraction
(GC Exh. 8). In my opinion, Foreman was solely responsible
for her actions that resulted in the three additional written rep-
rimands after her representation of Brown. Indeed, there was
an undercurrent of animosity that existed between Foreman and
a number of coworkers in the kitchen. This is evidenced by
Foreman reporting these individuals to Carter for work rule
infractions followed by these employees retaliating against
Foreman and reporting her infractions to Carter. In order to be
consistent, Carter gave written reprimands to all employees
who violated the work rules (R. Exhs. 6 and 7). Thus, it was
the violation of the work rules amply supported by written
documentation and coworker reports that led to the termination
rather then the General Counsel’s attempt to shield the infrac-
tions based on Foreman’s protected activities.
Based on the foregoing, I find that Foreman was terminated
on January 23, for receiving five class I written reprimands
within a 1-year period and for violating class III work rule 10
when she used profane language towards her supervisor and
fellow coworkers. Contrary to the General Counsel, I do not
find that Foreman was terminated because of her protected
activities and therefore recommend that paragraph 7(b) of the
complaint be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act by maintaining overly
broad work rules.
3. Respondent did not engage in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act when it sus-
pended and thereafter terminated Vivian A. Foreman.
4. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, Lutheran Heritage Village-Livonia,
Livonia, Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining the following work rules:
(1) Selling or soliciting anything in the building or on com-
pany property (the premises), whether you are on duty or off
duty, unless you have been given written permission by the
Administrator. (Class I, rule 14.)
(2) Loitering on company property (the premises) without
permission from the administrator. (Class I, rule 17.)
(3) Engaging in unlawful strikes, work stoppages, slow-
downs, or other interference with production at any Martin
Luther Memorial Home facility or official business meeting.
(Class III, rule 5.)
(b) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Rescind the work rules quoted above and advise the em-
ployees in writing that the rules are no longer being maintained.
(b) Within 14 days after service by the Region, post at its fa-
cility in Livonia, Michigan, copies of the attached notice
marked “Appendix.”5 Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
5 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 BOARD658
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
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since October 1, 2001.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
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 any union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain the following work rules
Selling or soliciting anything in the building or on company
property (the premises), whether you are on duty or off duty,
unless you have been given written permission by the Admin-
istrator. (Class I, rule 14.)
Loitering on company property (the premises) without per-
mission from the Administrator. (Class I, rule 17.)
Engaging in unlawful strikes, work stoppages, slowdowns, or
other interference with production at any Martin Luther Me-
morial Home facility or official business meeting. (Class III,
rule 5.)
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL rescind the work rules quoted above and advise the
employees in writing that the rules are no longer being main-
tained.
LUTHERAN HERITAGE VILLAGE-LIVONIA