UPMC and its Subsidiaries UPMC Presbyterian Shadyside and Magee-Womens Hospital of UPMC, Single Empl

National Labor Relations Board - Board Decisions

Aug 27, 2015

362 NLRB No. 191 (N.L.R.B. 2015)

362 NLRB No. 191
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
UPMC and its subsidiaries UPMC Presbyterian
Shadyside and Magee-Womens Hospital of
UPMC, single employer, d/b/a Shadyside Hospi-
tal and/or Presbyterian Hospital and/or Mon-
tefiore Hospital and/or Magee-Womens Hospital
and SEIU Healthcare Pennsylvania, CTW,
CLC. Case 06–CA–081896
August 27, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On April 19, 2013, Administrative Law Judge David I.
Goldman issued the attached decision. Respondents
UPMC Presbyterian Shadyside and Magee-Womens
Hospital of UPMC filed exceptions and a supporting
brief, the General Counsel filed an answering brief, and
the Respondents filed a reply brief. In addition, the Gen-
eral Counsel filed limited exceptions and a brief in sup-
port of the judge’s decision, the Charging Party filed
limited exceptions and a supporting brief, and the Re-
spondents filed answering briefs to the General Coun-
sel’s and Charging Party’s limited exceptions.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.

1 After the briefing period ended, the Respondents submitted a letter
requesting that the Board take notice of Weyerhaeuser Co., 359 NLRB
No. 138 (2013), as supplemental authority supporting their position.
The Charging Party opposed the Respondents’ request and requested
that the Board take notice of Quicken Loans, Inc., 359 NLRB No. 141
(2013), as supplemental support for its position. We have accepted
these submissions, but we note that Weyerhaeuser and Quicken Loans
were decided by panels that included two persons whose appointments
to the Board were not valid. See NLRB v. Noel Canning, 134 S.Ct.
2550 (2014). However, a properly constituted Board has since reaf-
firmed the analysis of Quicken Loans. See 361 NLRB No. 94 (2014).
Further, as we discuss below, the Respondents, Charging Party, and
General Counsel submitted additional letters addressing Purple Com-
munications, Inc., 361 NLRB No. 126 (2014). In Purple Communica-
tions, the Board overruled Register Guard, 351 NLRB 1110 (2007),
enfd. in relevant part and remanded sub nom. Guard Publishing v.
NLRB, 571 F.3d 53 (D.C. Cir. 2009), “to the extent it holds that em-
ployees can have no statutory right to use their employer’s email sys-
tems for Section 7 purposes.” 361 NLRB No. 126, slip op. at 1.
The AFL–CIO filed a motion for leave to file an amicus brief in
support of the General Counsel’s and Charging Party’s positions that
the Board should overrule Register Guard. The Respondents filed an
opposition. We deny as moot the AFL–CIO’s motion for leave to file
an amicus brief. We also deny as moot the Charging Party’s request for
oral argument, as it concerned whether Register Guard should be over-
ruled.
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, and conclusions2
only to the extent consistent with this Decision and Or-
der.3
The General Counsel alleged that certain language in
the Respondents’ Solicitation Policy, Electronic Mail and
Messaging Policy (“email policy”), and Acceptable Use
of Information Technology Resources Policy (“accepta-
ble use policy”) was, on its face, unlawful.4 The judge
found that the Respondents violated Section 8(a)(1) of
the Act by maintaining the latter two policies because
they contained language that reasonably tended to chill
employees’ exercise of their Section 7 rights. We agree
with these findings and with most of the judge’s underly-
ing analysis.5 The judge dismissed the allegation that the

2 We have amended the judge’s Conclusions of law and Remedy
consistent with our findings herein. For the reasons stated in the
judge’s decision, we affirm his denial of UPMC’s motion for judgment
on the pleadings and his imposition of remedial obligations on UPMC.
UPMC correctly observes—and the judge found—that the second
amended complaint does not allege that UPMC, as a separate entity,
committed unfair labor practices. However, as the judge also ex-
plained, pursuant to a stipulation set forth in Joint Exhibit 1, UPMC
(along with UPMC Presbyterian Shadyside and Magee-Womens Hospi-
tal of UPMC) agreed to expunge “any policies . . . adjudicated as un-
lawful” and to notify employees of that action. Accordingly, we agree
with the judge that “[t]here is no due process problem . . . with holding
UPMC liable for remedial purposes to the extent UPMC consented to
be bound by a remedial order . . . .”
3 We shall modify the judge’s recommended Order to conform to the
unfair labor practice findings and to the Board’s standard remedial
language. The Order sets forth remedies for the unfair labor practices
and additional remedies based on the stipulation set forth in Jt. Exh. 1.
See fn. 2, supra. Finally, we shall substitute a new notice to conform to
the Order as modified and in accordance with our decision in Durham
School Services, 360 NLRB No. 85 (2014).
4 All of the Respondents’ personnel and human resources policies
are maintained on the UPMC Infonet, which the Respondents use to
communicate with employees. All employees are given passwords to
access the Infonet. Computers in certain departments or work areas of
Respondents’ facilities can be accessed by multiple employees. Not all
of Respondents’ employees have email addresses within UPMC’s
electronic mail system.
5 In finding that the Respondents’ email policy was unlawful, the
judge relied on, among other cases, DirecTV U.S. DirecTV Holdings,
LLC, 359 NLRB No. 54 (2013); J.W. Marriott Los Angeles at L.A.
Live, 359 NLRB No. 8 (2012); Karl Knauz BMW, 358 NLRB No. 164
(2012); Flex Frac Logistics, LLC, 358 NLRB No. 127 (2012); and
Costco Wholesale Corp., 358 NLRB No. 106 (2012). And, in finding
that the Respondents’ acceptable use policy was unlawful, the judge
relied on, among other cases, DirecTV, supra; J.W. Marriott, supra; and
Costco Wholesale, supra. All of those cases were decided by panels
that included one or more persons whose appointments to the Board
were not valid. See NLRB v. Noel Canning, 134 S.Ct. 2550 (2014).
However, a properly constituted Board has since issued a decision
reaffirming the analysis of DirecTV. See 362 NLRB No. 48 (2015). In
addition, prior to the issuance of the Supreme Court’s decision in Noel
Canning, the United States Court of Appeals for the Fifth Circuit en-
forced the Board’s Order in Flex Frac Logistics, see 746 F.3d 205 (5th
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondents violated Section 8(a)(1) by maintaining the
following language in their solicitation policy:

Cir. 2014), and there is no question regarding the validity of the court’s
judgment. In adopting the judge’s unfair labor practice findings regard-
ing the email policy and the acceptable use policy, we rely on these two
cases, as well as others cited by the judge that were not invalidated by
Noel Canning.
In adopting the judge’s finding that the Respondents’ email policy
was overly broad and ambiguous, we find it unnecessary to rely on the
judge’s reasoning that the policy did not provide “illustrations or guid-
ance” that would assist an employee in interpreting certain terms.
Our colleague’s dissent regarding the email policy relies primarily
on his disagreement with Purple Communications, supra. We will not
reiterate the basis for that decision here. The dissent also contends that
the judge erroneously conflated ambiguity and discrimination. But the
judge did no such thing. Rather, he found the email policy unlawful
based on its ambiguity, a finding and analysis that we adopt. He dis-
cussed discrimination only in the context of explaining that the (subse-
quently overruled) Register Guard holding—which allowed employers
to generally prohibit employee nonwork email use unless they did so
discriminatorily—did not immunize overbroad and chilling email re-
strictions like those at issue here. Inasmuch as Register Guard is no
longer relevant in that context, we need not rely on the judge’s discus-
sion of it with regard to the email policy. Finally, the dissent argues
that “[e]mployees would reasonably understand that the [email policy]
is designed to reach serious misconduct . . . not their union or other
protected activity.” But, in view of the wide reach of the Respondents’
prohibitions, including several provisions of the acceptable use policy
that our colleague agrees are unlawful, we conclude that a reasonable
employee would read the restrictions broadly, as they were written. In
particular, the email policy’s unlawful ban on using the Respondents’
systems “to solicit employees to support any group or organization,
unless sanctioned by UPMC executive management” would reasonably
be understood by employees to cover their union or other protected
activity.
Similarly, the dissent concludes that the acceptable use policy’s pro-
hibition on the use of UPMC’s logos or other copyrighted or trade-
marked materials communicates to employees that the Respondents are
concerned with intellectual property protection and the appearance of
misrepresentation, not with the employees’ Sec. 7 rights. But the pro-
vision does not, by its terms, limit itself to violations of intellectual
property law (indeed, the provision would ban employees’ protected
creation of parodies and many other types of fair use) or the unauthor-
ized representation of oneself as speaking for UPMC. Nor, in our view,
does the provision’s context convey those meanings. Although our
colleague finds relevant context by looking at the preceding provision,
an employee would also reasonably look to other nearby provisions that
our colleague agrees are unlawful, such as the prohibitions on disparag-
ing or misrepresenting UPMC, making false or misleading statements
regarding UPMC, and transferring certain types of information via the
internet. See Boch Honda, 362 NLRB No. 83, slip op. at 2 (2015)
(finding that employees would reasonably read rule prohibiting use of
employer’s logos to cover protected employee communications); Pepsi
Cola Bottling Co., 301 NLRB 1008, 1019–1020 (1991) (finding unlaw-
ful prohibition on wearing uniforms with logos while off duty, despite
employer’s assertion that the rule was “designed to protect the reputa-
tions of [employer’s] products’ trademarks and logos”).
The General Counsel and Charging Party contend that Purple Com-
munications, supra, provides an additional basis for finding the Re-
spondents’ email policy and their acceptable use policy unlawful.
Having adopted the judge’s findings, for the reasons he states and as
clarified above, we find it unnecessary to pass on the effect of Purple
Communications on those policies.
IV. Procedure
. . . .
C. No staff member may distribute any form of litera-
ture that is not related to UPMC business or staff duties
at any time in any work, patient care, or treatment are-
as. Additionally, staff members may not use UPMC
electronic messaging systems to engage in solicitation
(see also Policy HS-IO147 Electronic Mail and Mes-
saging).
. . . .
All situations of unauthorized solicitation or distribu-
tion must be immediately reported to a supervisor or
department director and the Human Resources De-
partment and may subject the staff member to correc-
tive action up to and including discharge.
Applying Register Guard, supra, the judge found the
solicitation policy lawful. And because he found the
policy lawful, the judge also found that it was not unlaw-
ful to require employees to report violations of that poli-
cy. No party contends that the policy is unlawful under
Register Guard. In their exceptions, the General Counsel
and Charging Party urged the Board to overrule Register
Guard and find the Respondents’ solicitation policy un-
lawful under a revised standard based on Republic Avia-
tion6 and related cases. The Respondents, for their part,
argued that the judge correctly dismissed the solicitation
policy allegation and that the Board should not overrule
Register Guard. In the alternative, the Respondents ar-
gued that even if the Board were to overrule Register
Guard, the solicitation policy would not be unlawful
under a revised standard because special circumstances
justify the policy.
While the present case remained pending, the Board
overruled Register Guard “to the extent it holds that em-
ployees can have no statutory right to use their employ-
er’s email systems for Section 7 purposes.” Purple
Communications, 361 NLRB No. 126, slip op. at 1. The
Board further held that it
will presume that employees who have rightful access
to their employer’s email system in the course of their
work have a right to use the email system to engage in
Section 7-protected communications on nonworking
time. An employer may rebut the presumption by
demonstrating that special circumstances necessary to
maintain production or discipline justify restricting its
employees’ rights.

6 Republic Aviation v. NLRB, 324 U.S. 793 (1945).
UPMC 3
Id., slip op. at 14. The Board explained that its holding in
Purple Communications was to be applied retroactively, and
it remanded that case to allow for the introduction of evi-
dence under the new standard. Id., slip op. at 16–17.
After the issuance of Purple Communications, the
Charging Party, the Respondents, and the General Coun-
sel submitted letters addressing the decision’s effect on
this case. The Charging Party now argues that the
judge’s decision should be reversed “to the extent that it
upheld the lawfulness” of the Respondents’ “Solicitation,
Electronic Mail and Messaging, and Acceptable Use of
Information Technology Policies based on Register
Guard.” The Charging Party also argues that a further
evidentiary hearing is not necessary “since [the judge]
held a full evidentiary hearing on the issues relating to
the lawfulness of Respondent’s email policies in Febru-
ary 2013 and Respondent was given the opportunity to
adduce evidence concerning its special circumstances.”
The General Counsel joins the Charging Party’s position,
agreeing that the Respondents have already advanced
their argument regarding “special circumstances” and
that they could have presented testimony on this issue
but did not do so.
In their letter, the Respondents state that the Board
should reverse its decision in Purple Communications.
Absent reversal, they contend that the Board should not
apply Purple Communications retroactively. The Re-
spondents further argue that their policies “are lawful
even under the new Purple Communications standard”
because they “have illustrated that ‘special circumstanc-
es’ justify [their] Policies in the hospital setting,” citing
their posthearing and answering briefs. Finally, the Re-
spondents assert that if “there is any doubt that Respond-
ents meet the new Purple Communications standard,”
they “must be permitted to present additional evidence
relevant to the ‘special circumstances’ exception.”
As described above, the relevant language in the solici-
tation policy at issue prohibits employees from using
“UPMC electronic messaging systems to engage in solic-
itation.” There is no dispute that the policy refers to em-
ployees’ use of the Respondents’ email system, and that
employees have rightful access to the Respondents’
email system during the course of their work. The Re-
spondents’ solicitation policy thus falls squarely within
the scope of Purple Communications’ presumption. Fur-
ther, this case was pending before the Board when Pur-
ple Communications issued, and the Board held that it
would apply the standard enunciated there to all pending
cases in whatever stage. See Purple Communications,
361 NLRB No. 126, slip op. at 16–17. We decline the
Respondents’ invitations to revisit the substance and the
retroactive application of that decision. Applying the
standard articulated in Purple Communications, we find
that the Respondents’ employees have a presumptive
right to use the Respondents’ email system to engage in
Section 7–protected communications during nonworking
time.7
As the Board also held in Purple Communications, an
employer may rebut this presumption by demonstrating
that special circumstances necessary to maintain produc-
tion or discipline justify restricting its employees’ rights.
Id., slip op. at 14. The Board remanded Purple Commu-
nications for a determination of the lawfulness of the
email policy at issue there, particularly with regard to the
existence of special circumstances. Id., slip op. at 17–18.
The Board did likewise in DirecTV, 362 NLRB No. 48,
slip op. at 1 (2015).
In the present case, however, the Respondents have al-
ready litigated the issue of “special circumstances.” In
their answering briefs, they argue that even if the Board
were to overrule Register Guard, the solicitation policy
would still be lawful because special circumstances justi-
fying the policy exist in hospital and healthcare environ-
ments. In support of their argument, the Respondents
cite NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 790
(1979), for the proposition that the Board “[bears] a
heavy continuing responsibility to review its policies
concerning organizational activities in various parts of

7 In addition to reiterating his Purple Communications dissent, our
colleague contends that, here, we wrongly “expand” that decision to the
hospital setting. We reject that contention. We are simply applying
extant law, and neither the dissent nor the Respondents have persuaded
us that hospitals warrant a general exclusion from this law.
Our dissenting colleague also contends that the Respondents’ email
system is a work area “provided for business and patient care purpos-
es.” We addressed the “work area” argument in Purple Communica-
tions, supra, slip op. at 13, and the addition of “patient care purposes”
to the proposed description changes nothing, unless the implication is
that the email system should be treated as a patient care area, in which
prohibitions on certain Sec. 7 activities are not presumptively unlawful.
We reject that characterization, as well. Patient care areas are “places
where patients receive treatment.” NLRB v. Baptist Hospital, Inc., 442
U.S. 773, 780 (1979) (quoting St. John’s Hospital, 222 NLRB 1150,
1150 (1976)). Even assuming that the Respondents’ email system is
used by employees to communicate about patient care, there is no evi-
dence that patients have access to the email system and it is not a place
where patients receive treatment. Further, “[t]he rationale for [treating
patient care areas differently] is the need to ‘maintain[] a peaceful and
relaxed atmosphere’” in those places where patients are cared for.
HealthBridge Management, LLC v. NLRB, Case No. 14–1101, — F. 3d.
—, 2015 WL 4909945, at *5 (D.C. Cir. Aug. 18, 2015) (quoting Baptist
Hospital, 442 U.S. at 783–784 fn. 12, and Beth Israel Hospital v.
NLRB, 437 U.S. 483, 509 (1978) (Blackmun, concurring in judgment)).
Limiting employees’ protected communications in the email system
would no more serve to maintain a peaceful and relaxed atmosphere in
patient care areas than would limiting employees’ protected communi-
cations in break rooms. Cf. id. at *10 (union flyers posted in break
rooms, where patients would not see them, “could not pose any threat
of upsetting patients”).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hospitals.” The Respondents chiefly rely on studies find-
ing a correlation between employee distraction and pa-
tient safety and identify computers and other electronic
communication devices as sources of distraction. Based
on those studies, the Respondents contend that “it would
be irresponsible for the Board to allow employee use of
Respondents’ technological resources and email sys-
tems.” The Respondents expressly advanced these ar-
guments in response to the General Counsel’s argument
that the Board should adopt a Republic Aviation-based
presumption, which employers could rebut by showing
special circumstances. Thus, the Respondents were in-
disputably on notice that the issue was before the Board
for consideration and, because the Board clearly could
have adopted and applied the General Counsel’s pro-
posed standard in this case (had Purple Communications
not issued first), the Respondents had sufficient incentive
to litigate the issue fully.8 Further, the Respondents’
letter—which was submitted after Purple Communica-
tions issued, and which directly responds to the General
Counsel’s and Charging Party’s contentions that no re-
mand is necessary—does not claim that the Respondents
have any new arguments to advance and identifies no
additional evidence they might present if remand were
granted.9 In short, because the Respondents have already
litigated the issue of special circumstances, we find it
unnecessary to remand the solicitation policy issue to the
administrative law judge for further proceedings.
Turning to the merits of the Respondents’ “special cir-
cumstances” defense, we find that they have not rebutted
the presumption. In Purple Communications, supra, slip
op. at 14, the Board stated:
[A]n employer contending that special circumstances
justify a particular restriction must demonstrate the
connection between the interest it asserts and the re-
striction. The mere assertion of an interest that could
theoretically support a restriction will not suffice. And,
ordinarily, an employer’s interests will establish special
circumstances only to the extent that those interests are

8 Thus, contrary to the dissent’s assertion, we have placed no “novel
burden of prescience” on the Respondents.
9 Because the General Counsel has argued throughout the proceed-
ings in this case that Register Guard should be replaced by the rebutta-
ble presumption discussed, this case does not raise the due process
concerns that may be seen in cases involving new allegations raised late
in the proceedings.
The Respondents and our dissenting colleague point to Purple
Communications’ statement that other employers with email re-
strictions affected by that decision would be given an opportunity to
rebut the presumption adopted there. Id., slip op. at 17. Under the
circumstances of this case, we find that the Respondents have already
had that opportunity.
not similarly affected by employee email use that the
employer has authorized.
Here, the Respondents have not established a connec-
tion between the interest they assert and the prohibition,
not limited to working time, against using “UPMC elec-
tronic messaging systems to engage in solicitation,” in-
cluding solicitation protected by Section 7. We do not
doubt that using a hospital’s email system during work-
ing time may be distracting, and that when nurses and
others responsible for patient care are distracted, errors
may result that may affect patient safety. But those con-
cerns, however legitimate, do not justify a policy that
prohibits the use of UPMC electronic messaging systems
for only one type of communication, namely solicitation.
Nothing in the studies cited by the Respondents demon-
strates that patient-safety interests would not be similarly
affected by employee email use that the Respondents
have already authorized. Neither do the Respondents
explain why the concerns they identify would justify
applying this prohibition to nonworking time.10 It seems
to us that the asserted concerns would prompt the Re-
spondents either to deny employees access to UPMC’s
email system altogether, which is lawful under Purple
Communications,11 or to fashion a policy that applies
solely to working time, also permitted under Purple
Communications.12 In sum, the Respondents have failed
to rebut the presumption that their solicitation policy is
unlawful.13 We therefore reverse the judge’s dismissal of

10 Nor is the Respondents’ restriction limited to patient-care areas, in
which a hospital’s health-care mission might support greater re-
strictions on employee solicitation than are generally permissible.
11 See 361 NLRB No. 126, slip op. at 14–15 (“Nor do we require an
employer to grant employees access to its email system, where it has
chosen not to do so.”).
12 Id., slip op. at 15 (“The presumption that we apply is expressly
limited to nonworking time.”).
13 “In the healthcare context, establishing ‘special circumstances’ re-
quires evidence that a ban is ‘necessary to avoid disruption of health-
care operations or disturbance of patients.’” HealthBridge Manage-
ment, LLC v. NLRB, Case No. 14–1101, -—F. 3d. —, 2015 WL
4909945, at *4 (D.C. Cir. Aug. 18, 2015) (quoting Beth Israel Hospital,
437 U.S. at 507). The Respondents, having based their argument on
speculative contentions about possible harm, simply have not succeed-
ed in making the required showing. See id., slip op. at 17–20.
In so finding, we do not disregard the importance of hospitals’ pa-
tient care obligations. Indeed, they are self-evident. But in this case, as
noted, the Respondents’ broad email solicitation ban is not limited to
email uses that could affect patient care. And we decline to follow our
dissenting colleague’s speculation linking Sec. 7 email communications
to patient care consequences. That is, even assuming that employees’
Sec. 7 email communications would constitute a portion of all electron-
ic communications, which constitute a portion of all distractions that
medical providers contend with, which cause a fraction of all medical
mistakes, we find that Sec. 7 email communications—which, we reiter-
ate, need not be permitted during employees’ working time – would not
have a significant effect on patient care. As discussed in Purple Com-
UPMC 5
this allegation and find that the Respondents have violat-
ed Section 8(a)(1) by maintaining the solicitation policy.
As a result, we also reverse the judge’s finding that the
reporting requirement in the solicitation policy is not
unlawful. That provision requires employees to immedi-
ately report “[a]ll situations of unauthorized solicitation
. . . to a supervisor or department director and the Human
Resources Department.” Because the solicitation policy
defines “unauthorized solicitation” to include solicitation
protected by Section 7, this rule “reasonably tends to
chill employees in the exercise of their Section 7 rights.”
Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd.
203 F.3d 52 (D.C. Cir. 1999); see Dunes Hotel, 284
NLRB 871, 878 (1987) (finding unlawful a request or
order in an overly broad no-solicitation/no-distribution
rule that an employee report on the protected activity of
fellow employees).14
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusion of Law 2 and re-
number the subsequent paragraphs accordingly.
“2. Since about December 15, 2011, Respondents
have violated Section 8(a)(1) of the Act by their mainte-
nance of a solicitation policy that prohibits employees’
use of the Respondents’ email system to engage in solici-
tation, including Section 7-protected communications,
during nonworking time, and that requires employees to
report violations of the solicitation policy.”
AMENDED REMEDY
In addition to the remedies provided in the judge’s de-
cision, we shall order the Respondents to cease and desist
from maintaining their solicitation policy on the UPMC
Infonet and elsewhere, to rescind that policy, and to noti-
fy their employees of the policy’s rescission.

munications, we disagree with the dissent’s view that employers lack
effective managerial means of limiting their employees’ use of work
email during worktime for nonwork purposes. See supra, slip op. at
15–16. Further, even if the dissent is correct that Beth Israel Hospital
requires our consideration in this case of alternatives, such as break
rooms and locker rooms, to email access, we view break rooms and
locker rooms as inadequate alternatives where, as here, employees
work in widely separated locations and varying round-the-clock shifts.
Thus, even if we were to balance the competing rights anew rather than
relying on the presumption set forth in Purple Communications, we
would find in favor of the employees’ right to use email for Sec. 7
purposes.
14 The General Counsel does not argue that the language regarding
distribution is unlawful. We therefore find it unnecessary to pass on
that question.
Should the Respondents promulgate a new or revised solicitation
policy that does not unlawfully restrict employees’ Sec. 7-protected
activities, a provision that requires employees to report violations of the
policy would generally be lawful, unless its language or the circum-
stances of its promulgation or application violate the test set forth in
Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004).
ORDER
Respondents UPMC Presbyterian Shadyside and
Magee-Womens Hospital of UPMC, Pittsburgh, Penn-
sylvania, their officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining a “Solicitation Policy” that prohibits
employees’ use of the Respondents’ email system to en-
gage in solicitation, including Section 7-protected com-
munications, during nonworking time, and that requires
employees to report violations of any such rule.
(b) Promulgating and maintaining an “Electronic Mail
and Messaging Policy” that contains the following lan-
guage:
UPMC electronic messaging systems may not be used:
 To promote illegal activity or used in a way
that may be disruptive, offensive to others, or
harmful to morale; or
 To solicit employees to support any group or
organization, unless sanctioned by UPMC ex-
ecutive management;
 In a manner inconsistent with UPMC policies
and directives, including, but not limited to
policies concerning commercial communica-
tion, solicitation, sexual harassment, job per-
formance and appropriate Internet use.
(c) Promulgating and maintaining an “Acceptable Use
of Information Technology Resources Policy” that con-
tains the following language:
UPMC workforce members shall only use UPMC in-
formation technology resources for authorized activi-
ties. Authorized activities are related to assigned job re-
sponsibilities and approved by the appropriate UPMC
management. To the extent that a UPMC information
technology resource is assigned to an employee, the
employee is permitted de minimis personal use of the
UPMC information technology resource.
“De minimis personal use” is defined as use of the in-
formation technology resource only to the extent that
such use does not affect the employee’s job perfor-
mance nor prevents other employees from performing
their job duties.
. . .
20. Without UPMC’s prior written consent, a UPMC
workforce member shall not independently establish
(or otherwise participate in) websites, social networks
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(such as face book, MySpace, peer-to-peer networks,
twitter, etc.) electronic bulletin boards or other web-
based applications or tools that:
 Describe any affiliation with UPMC;
....
 Disparage or Misrepresent UPMC;
 Make false or misleading statements regard-
ing UPMC;
. . . .
 Use UPMC’s logos or other copyrighted or
trademarked materials (See UPMC Policy
HS-PR1100 titles “Use of UPMC Name,
Logo, and Tagline”).
. . . .
23. Sensitive, confidential, and highly confi-
dential information transferred over the Inter-
net shall use appropriate security controls and
have the written approval of UPMC’s Chief
Information Officer or Privacy Officer.
(d) 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 “Solicitation Policy” that prohibits
employees’ use of the Respondents’ email system to en-
gage in solicitation, including Section 7-protected com-
munications, during nonworking time.
(b) Rescind the “Electronic Mail and Messaging Poli-
cy” that contains the following language:
UPMC electronic messaging systems may not
be used:
 To promote illegal activity or used in a way
that may be disruptive, offensive to others, or
harmful to morale; or
 To solicit employees to support any group or
organization, unless sanctioned by UPMC ex-
ecutive management;
 In a manner inconsistent with UPMC policies
and directives, including, but not limited to
policies concerning commercial communica-
tion, solicitation, sexual harassment, job per-
formance and appropriate Internet use.
(c) Rescind the “Acceptable Use of Information
Technology Resources Policy” that contains the follow-
ing language:
UPMC workforce members shall only use UPMC in-
formation technology resources for authorized activi-
ties. Authorized activities are related to assigned job re-
sponsibilities and approved by the appropriate UPMC
management. To the extent that a UPMC information
technology resource is assigned to an employee, the
employee is permitted de minimis personal use of the
UPMC information technology resource.
“De minimis personal use” is defined as use of the in-
formation technology resource only to the extent that
such use does not affect the employee’s job perfor-
mance nor prevents other employees from performing
their job duties.
. . . .
20. Without UPMC’s prior written consent, a UPMC
workforce member shall not independently establish
(or otherwise participate in) websites, social networks
(such as face book, MySpace, peer-to-peer networks,
twitter, etc.) electronic bulletin boards or other web-
based applications or tools that:
 Describe any affiliation with UPMC;
. . . .
 Disparage or Misrepresent UPMC;
 Make false or misleading statements regard-
ing UPMC;
. . . .
 Use UPMC’s logos or other copyrighted or
trademarked materials (See UPMC Policy
HS-PR1100 titles “Use of UPMC Name,
Logo, and Tagline”).
. . . .
23. Sensitive, confidential, and highly confidential in-
formation transferred over the Internet shall use appro-
priate security controls and have the written approval of
UPMC’s Chief Information Officer or Privacy Officer.
(d) Within 14 days after service by the Region, post at
all their facilities the attached notice marked “Appen-
UPMC 7
dix.”15 Copies of the notice, on forms provided by the
Regional Director for Region 6, after being signed by the
Respondents’ authorized representative, shall be posted
by Respondents and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondents customarily communicate with their
employees by such means. Reasonable steps shall be
taken by the Respondents to ensure that the notices are
not altered, defaced, or covered by any other material. If
the Respondents have gone out of business or closed any
facility involved in these proceedings, the Respondents
shall duplicate and mail, at their own expense, a copy of
the notice to all current employees and former employees
employed by Respondents at any time since December
15, 2011.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 6 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that Respondents have taken
to comply.
As further remedies for the violations found in this
case, UPMC, UPMC Presbyterian Shadyside, and
Magee-Womens Hospital of UPMC, Pittsburgh, Penn-
sylvania, shall, in accordance with the stipulation (Jt.
Exh. 1) signed by all parties:
1. Expunge the “Solicitation Policy”, the “Electronic
Mail and Messaging Policy”, and the “Acceptable Use of
Information Technology Resources Policy” set forth
above, wherever those policies exist on a systemwide
basis at any and all UPMC, Presbyterian Shadyside, and
Magee-Womens Hospital facilities within the United
States and its territories.
2. Notify all their employees at all their facilities with-
in the United States and its territories where the “Solici-
tation Policy,” the “Electronic Mail and Messaging Poli-
cy,” and the “Acceptable Use of Information Technology
Resources Policy,” as described above, were in exist-
ence, that those policies have been rescinded and will no
longer be enforced. Appropriate notice to employees of
the rescission will be accomplished by whatever means
UPMC, Presbyterian Shadyside, and Magee-Womens
Hospital have traditionally used to announce similar pol-
icy changes to employees in other circumstances.

15 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.”
Dated, Washington, D.C. August 27, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER JOHNSON, dissenting in part.
I concur with my colleagues’ conclusion that the Re-
spondent violated Section 8(a)(1) of the Act by promul-
gating and maintaining certain language in its “Accepta-
ble Use of Information Technology Resources Policy,”
but only for the reasons stated below. I disagree with
their findings that language in the Respondents’ “Solici-
tation Policy” and “Electronic Mail and Messaging Poli-
cy” are unlawful.
I. THE SOLICITATION POLICY
I begin with the Solicitation Policy, which broadly and
nondiscriminatorily prohibits solicitation using the Re-
spondent’s electronic messaging systems, including
email, which is at issue here. Relying on Purple Commu-
nications, Inc., 361 NLRB No. 126 (2014), a decision in
which I dissented, my colleagues find that the Respond-
ent’s employees have a statutory right to use the Re-
spondent’s email system for union organizing and other
Section-7 related activity because they are already ex-
pected to use the business email for work purposes. The
majority thus expands Purple Communications to the
acute care hospital setting, ignores compelling reasons
for not doing so, and rejects the Respondent’s argument
that it should be permitted to litigate special circum-
stances justifying its solicitation policy. I dissent be-
cause Purple Communications was wrongly decided.
Alternatively, however, I find that the presumptions es-
tablished there should not be extended to healthcare set-
tings and that the Respondent established special circum-
stances related to the taxing hospital environment that
justify its prohibition on solicitation using its email sys-
tem. At the very least, due process, and Purple Commu-
nications itself, require that the case be remanded for the
Respondent to properly litigate the special circumstances
that make its policy lawful and necessary for the safety
of its patients.
The Respondent’s solicitation policy lawfully bars dis-
tribution of “any form of literature that is not related to
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
UPMC business or staff duties at any time in any work,
patient care, or treatment areas,” but continues to state:
Additionally, staff members may not use UPMC elec-
tronic messaging systems to engage in solicitation (see
also Policy HSIO147 Electronic Mail and Messaging).
. . . .
All situations of unauthorized solicitation or distribu-
tion must be immediately reported to a supervisor or
department director and the Human Resources De-
partment and may subject the staff member to correc-
tive action up to and including discharge.
Further, section II, describing the scope of the solicitation
policy, states in pertinent part:
Covered activities include, but are not limited to: solici-
tation for raffles, charity drives, sale of goods, propos-
ing or procuring membership in any organization, or
canvassing. Activities sponsored and approved by
UPMC or a business unit's President are permitted,
such as United Way campaigns.
Thus, the policy is nondiscriminatory, applies to all so-
licitation including for charitable purposes, and the ex-
ample given for Employer-sponsored solicitation is a
charitable organization—presumably referring to Em-
ployer-wide charitable efforts.
The judge dismissed the allegation that the challenged
language in the solicitation policy was unlawful, apply-
ing Register Guard, 351 NLRB 1110 (2007) (holding
that employees do not have a statutory right to use their
employer’s email for Sec. 7 communications), enfd. in
relevant part and remanded sub nom. Guard Publishing
v. NLRB, 571 F.3d 53 (D.C. Cir. 2009).1
During the time that the instant case was pending be-
fore the Board, a Board majority decided Purple Com-
munications, over my and Member Miscimarra’s dis-
sents, overruling Register Guard in pertinent part. 361
NLRB No. 126, slip op. at 1. The majority there empha-
sized that the decision was limited only to email, not
“other electronic systems, like instant messaging or tex-
ting.” Id., slip. op at 14 fn. 70.
Turning to the instant case, my colleagues apply Pur-
ple Communications to find that the Respondent violated
the Act by promulgating and maintaining language in the
solicitation policy that prohibits use of the Respondent’s
email for solicitation.2 Under Purple Communications,

1 Neither the parties nor my colleagues contend that the judge erred
in finding that the policy would be lawful under Register Guard.
2 The Respondent’s solicitation policy relates to its electronic com-
munications systems, but the aspect my colleagues find unlawful relates
they find that the employees have a presumptive statuto-
ry right to use the Respondent’s email for Section-7 re-
lated communications during nonworking time, and that
the Respondent, which operates acute care hospitals, did
not show special circumstances justifying the policy and
thus failed to rebut the presumption. (Never mind that at
the time of the hearing there was no need to litigate “spe-
cial circumstances” under any extant law, and certainly
not with any vigor.) I disagree with my colleagues’ find-
ings for the reasons stated in my dissent in Purple Com-
munications, and because the likelihood that health care
workers in Respondent’s hospitals would be distracted
by union or other Section-7 related solicitation emails
that arrive in their inbox while they are working creates a
heightened risk of error in patient care and a concurrent
risk of liability for the hospital.
As I explained in Purple Communications, the pre-
sumption that employees have a statutory right to use
their employer’s email for Section 7 activity solely be-
cause they use the it for business purposes is flawed in
multiple respects: It dispenses with any appropriate bal-
ancing of the employees’ actual need to use the employ-
er’s email against the employer’s right of control over its
own systems. It effectively requires the employer to
permit employee use of its email for union and other em-
ployment-related matters even during worktime, due to
the nature of email which permits little distinction be-
tween work and nonworktime, and the improbability of
actually monitoring whether usage is limited to non-
working time. Like the majority in the current case, the
majority in Purple Communications failed to account for
the multiple other available modes of communication,
including face-to-face discussions and the many other
electronic communications networks and personal devic-
es that employees could use for Section-7 related com-
munications on their own time. The failure to consider
other modes of communication is particularly problemat-
ic in the hospital setting and contravenes Supreme Court
precedent.3 Further, the Purple Communications majori-
ty acknowledged the availability of other modes of
communication, but failed to expressly admit that it was
basing its finding that employees had a statutory right to
use the employer’s email on the convenience of such
systems, rather than on any showing of necessity on the
part of employees. That underlying, if unstated, rationale
was wrong there and is wrong here. Finally, Purple
Communications contravenes employers’ First Amend-

only to use of email and does not extend to instant messaging or other
forms of communication, consistent with Purple Communications.
3 Beth Israel Hospital v. NLRB, 437 U.S. 483, 505 (1978) (referring
to availability of alternative means of communication as a necessary
inquiry in assessing hospital restrictions on solicitation).
UPMC 9
ment rights by requiring employers, at their own ex-
pense, to host and subsidize speech on their own business
email systems even where it is hostile to the employer.
Thus, because Purple Communications was wrongly
decided, I find that the instant allegation involving the
solicitation policy should be dismissed.
While I adhere to my view that Purple Communica-
tions was wrongly decided and the employees have no
statutory right to use an employer’s email for Section-7
related purposes, I alternatively find that, even under
Purple Communications, the employer has established
special circumstances justifying its ban on use of its elec-
tronic resources for solicitation. And in that vein, I
would not extend the presumption of a Section 7 right to
the healthcare setting. The email system is provided for
business and patient care purposes and is a virtual work
area such that requiring its use for Section-7 related
communications risks increased distraction and disrup-
tion in the already taxing acute care environment, where
frequent distractions and interruptions of healthcare pro-
fessionals are a significant cause of medical error. Given
the nature of the hospital setting and the healthcare
community’s efforts to address the persistent problem of
distraction, interruption, and general cognitive overload
in the hospital environment, hospitals have legitimate
needs to regulate, in a nondiscriminatory manner, the use
of their email systems to minimize the extraneous clutter
and diversion that contributes to the growing crisis of
medical errors. The Respondent has done so here, and
the Board should not interfere with those reasonable
limitations.
Numerous reports indicate that the distraction and con-
stant interruptions prevalent in the health care environ-
ment are a significant cause of medical error and subject
of a growing body of research intended to help hospitals
develop strategies for minimizing such risks. The Re-
spondent cited several studies identifying electronic
communications as a source of distraction of heath care
workers, and linking distraction and interruption, in turn,
to medical error.4

4 One recent study receiving wide media attention found that medi-
cal errors contribute to between 210,000 and 440,000 patient deaths
annually in United States hospitals, the higher number indicating
roughly one-sixth of all deaths that occur in the United States each
year. James, A New, Evidence-based Estimate of Patient Harms Asso-
ciated with Hospital Care, Journal of Patient Safety, September 2013,
Vol. 9, Issue 3, 122–128 http://journals.lww.com/journalpatientsafety/toc/2013/09000).
(last accessed August 2015). The reasons are myriad, but distraction,
constant interruption, complexity of treatment, and the cognitive over-
load experience by practitioners are factors. As one recent report ad-
dressing the role of distraction in medical errors observed:
High levels of distraction in healthcare settings pose a constant
threat to
The Respondent, like all hospitals, has an obligation to
its patients and staff to implement strategies for minimiz-
ing such distractions where the staff is already at a high
risk of error as inherent in the hospital setting. But to-
day’s decision threatens to interfere with efforts
throughout the healthcare community to establish com-
prehensive strategies for minimizing the risk of extrane-
ous distractions and disruption in the delivery of patient
care. Such events as the computer signaling an incoming
email have been identified as very real sources of inter-
ference in the hospital environment where the intense
focus necessary for effective patient care is already be-
sieged by myriad and constant interruption diverting a
practitioner, even for a few moments, from the task at
hand.5 Understanding the impact of such distractions is
critical here because the nature of email does not permit
any effective way to shield an employee, while working,
from nonwork-related emails sent by other employees
while they are off duty. As explained in my dissent in
Purple Communications and further below, the notion
that working time is for work simply loses its meaning
when it comes to email, particularly in the 24/7 hospital
environment.6 In light of the above, and common sense,
I disagree with my colleagues’ unsupported assertion that
these concerns can be dismissed as speculative and that
opening the hospitals’ email system to virtually unlim-
ited Section 7 activity will not risk interfering with pa-
tient care.

patient safety. New technologies have increased the number
and types of distractions present in these settings. . . . Any-
thing that diverts attention away from the primary task is a
source of distraction. Sources of distraction can be broadly
attributed to individuals (e.g., clinicians, patients, family
members) or to technology (e.g., medical equipment, com-
puters, communication devices). "Distracted doctoring" is a
term recently coined in the media to describe the interrup-
tions to workflow caused by the introduction of new techno-
logical devices in the clinical setting. This has been elevated
to new levels of concern within the healthcare community
and the general public due to the widespread implementa-
tion of computerized provider order entry (CPOE) systems
and electronic medical records, along with the growing use
of cell phones and smartphones.
Feil, Distractions and Their Impact on Patient Safety 2013, Penn-
sylvania Patient Safety Advisory, vol. 10, no. 1, pp. 1–10 at 1 (2013).
5 Beyea, Distractions, interruptions, and patient safety, AORN
journal, vol. 86, no. 1, pp. 109–112 at 109 (2007) (common distractions
and interruptions that occur in clinical environments include computer
signaling that new mail has arrived).
6 As the Respondent convincingly argues on brief, solicitations sent
via its email system almost certainly will be retrieved and read during
working time precisely because Respondents' email system exists for
business and patient care, and emails are therefore presumed to be
business related. Because the Respondent’s employees are expected to
read each email, “permitting solicitation through Respondents' email
system is tantamount to permitting solicitation on working time.”
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In extending Purple Communications to the hospital
setting, my colleagues further err by failing to adequately
consider the multiple alternative means of communica-
tion available to employees. As the Supreme Court noted
in Beth Israel Hospital, above at 505:
. . . in the context of health-care facilities, the im-
portance of the employer’s interest in protecting pa-
tients from disturbance cannot be gainsaid. While out-
side of the health-care context, the availability of alter-
native means of communication is not, with respect to
employee organizational activity, a necessary inquiry
. . . it may be that the importance of the employer’s in-
terest here demands use of a more finely calibrated
scale. For example, the availability of one part of a
health-care facility for organizational activity might be
regarded as a factor required to be considered in evalu-
ating the permissibility of restrictions in other areas of
the same facility.
That case involved organizational solicitation in the hospital
cafeteria. The Court upheld the Board’s reliance on the min-
imal usage of the cafeteria by nonemployees and the lack of
other suitable areas for solicitation in the hospital to find that
the respondent’s ban on union-related solicitation while
permitting other solicitation in the cafeteria violated the
Act. Consideration of alternatives is paramount in the hospi-
tal setting. That is particularly true here, as we are not talk-
ing about solicitation in a cafeteria or gift shop: Here the
email system is effectively a work area. It is not a cafeteria
in place for the employees while on break, but was pur-
chased and developed for business purposes in the service
of patient care. And the availability of alternate modes of
communication establishes that effective organizing does
not depend on access to the Respondent’s email. In addition
to the employees’ personal cell phones and other electronic
devices, numerous break rooms are available for face-to-
face conversation, with at least 13 break rooms at the Magee
facility and 95 locker rooms or staff lounges available at
Presbyterian Shadyside.7
My colleagues also err by relying on the fiction that
this is only about a restriction on nonworktime solicita-
tion and that the Respondent need not permit worktime
solicitation. Due to the nature of email, the Respondent
will, in effect, have to tolerate employees receiving
worktime Section-7 related solicitations without regard
for the persistence and number of the communications or

7 In this respect I disagree with my colleagues that employees can-
not adequately communicate with one another in these break rooms and
in conjunction with all other personal modes of communication availa-
ble to them. As I explained in my dissent in Purple Communications,
my colleagues’ argument is based on convenience, nothing more,
which is hardly a trigger of a statutory right.
the effects on patient care. Unless my colleagues agree
that the Employer can prohibit employees from sending
emails to coworkers during a time when the recipients
are working, the notion that worktime is for work in the
email context is an antiquated nullity. How could it be
otherwise? Hospitals operate 24/7. Organizing-type
emails sent to a significant number of employees will
invariably arrive during employees’ worktime. And, as
the Respondent points out, employees are required to
read their emails because they are presumed to be about
business or patient care. It is also unrealistic to believe
that employees will refrain from reading and answering
such emails until they are on break, especially where an
exchange balloons to involve multiple individuals in
what may effectively become a group meeting, or when
dealing with the emotionally provocative subjects that
typically fall under the Act’s purview, such as wages or
disputes with management.
Further, the right my colleagues extend to hospital em-
ployees is unlimited. Union solicitation and other organ-
izing activity involve unit-wide communications, large
numbers of employees, and often copious emails. And
this Respondent employs 55,000 employees. So a dis-
cussion involving just one percent of those employees
will include 550 participants, only some of whom will be
on break or off duty when the computers signal their ar-
rival and the emails appear in their inboxes, requiring, at
minimum, some attention and review, and most likely a
response while the email is fresh on the screen of an em-
ployee on the computer when the email arrives.8
My colleagues contend that the email system is not
analogous to a work area. This is mere semantics. The
email systems are in place for work purposes and are not
analogous to the cafeterias at issue in Beth Israel Hospi-
tal or locations where patients are unlikely to visit. Fur-
ther, the salient issue here is not that patients might be
disturbed by, for example, handbilling in patient care
areas, but that healthcare providers may be distracted and
interrupted by unrestricted Section 7 emails intruding on
their work while they are logged onto hospital comput-
ers, performing work on those computers, and obligated

8 I also find no rational basis for finding that a hospital that permits
some personal use of the email system in a nondiscriminatory manner
must as a matter of law allow employees to use the system for union
activity as well. There is a vast difference in scale between use of email
to, say, find a ride home or some other such minor usage and use of the
email for an organizing campaign. As to the former, the hospital may
limit the scope of that usage. Not so in the latter case: The newly an-
nounced statutory right to use the email system is not limited in scope,
whether an employee sends one solicitation email or 500, the latter
which will invariably go to employees while they are working even if
the sender is on break, and with little recourse for the employer to
restrict it.
UPMC 11
to read incoming messages.9 Further, email senders have
no way of knowing whether the recipients are working,
and the hospital cannot realistically monitor when non-
work emails are sent. Work in the often chaotic and
stressful hospital environment, and work on computer
systems such as obtaining medication and other patient
care information, demands a high level of concentration
that must be shielded from interruption and distraction as
best as practicable. Requiring hospitals to permit union
organizing activity or other Section 7 solicitation onto its
email systems risks disrupting the health care communi-
ty’s efforts to reduce distraction and resulting medical
errors. Thus, in my view, the Agency should not blunder
into such a sensitive area by limiting the hospital’s abil-
ity to control unessential information flow on its own
email system: It is not necessary for effective organizing
as alternative modes of communication are plentiful, it
cannot be effectively monitored without surveilling every
email sent or received during worktime, and risks an un-
warranted intrusion on efforts to improve patient safety.
Finally, this case must at very least be remanded to al-
low the Respondent to establish special circumstances
justifying its policy, as the majority directed in Purple
Communications, remanding the issue to the judge “to
allow the Respondent to present evidence of special cir-
cumstances justifying the restrictions it imposes on em-
ployees’ use of its email system. Other employers with
email restrictions affected by today’s decision will simi-
larly have an opportunity to rebut the presumption.”
Purple Communications, slip op. at 17. My colleagues
contend that the Respondent litigated special circum-
stances at the hearing and proffered articles connecting
electronic resources to distraction and in turn to medical
errors in its brief. I disagree: This case was litigated un-
der the then-extant Register Guard standard. Pre-Purple
Communications, the Respondent had minimal incentive
to litigate and proffer evidence on this issue and it is
questionable whether extensive evidence on the matter
would even have been relevant under the law governing
at the time of the hearing. It hardly matters than the
General Counsel sought to overrule Register Guard: the
Respondent cannot be faulted for failing to fully litigate
an issue under a standard that did not exist at the time of
the hearing, nor for failing to satisfy the novel burden of
prescience that my colleagues place on it.

9 Contrary to my colleagues, NLRB v. Baptist Hospital, Inc., 442
U.S. 773 (1979); St. John’s Hospital, 222 NLRB. 1150 (1976), and
HealthBridge Management, LLC v. NLRB, Case No. 14–1101, — F. 3d.
—, 2015 WL 4909945 (D.C. Cir. Aug. 18, 2015) did not limit the spe-
cial considerations relevant to acute care hospitals. That is tantamount
to saying that work disruption and risks to patient care are not required
considerations simply because those cases presented different issues.
That being said, I do not take the position that an Em-
ployer cannot relinquish some right of control over its
email system where it maintains a discriminatory prohi-
bition on usage. While I disagree with the decision in
Purple Communications, I would instead clarify Register
Guard to hold that if the Respondent (a) knowingly al-
lows, (b) on a regular basis, its business systems to be
used for solicitation related to (c) noncharitable (e.g.,
non-501(c)(3)) or non-business partner organizations,
then consequent discrimination against Section 7 emails
is unlawful. By noncharitable, nonbusiness partner or-
ganizations, I mean political, social, or civic organiza-
tions, or commercial enterprises that the employer itself
is not doing business with as, for example, a customer or
vendor. The mere existence of an email on the system
would not show knowing allowance; but an approving
response to such an email from a manager or a highly
placed statutory supervisor would. The analysis would
turn on the facts and circumstances of each case, as
would the determination of what a “regular basis” would
be, given the facts of the particular employer. Thus, ap-
plied here, the Employer’s solicitation policy is broadly
drawn and has no exceptions except for Employer-
sponsored solicitation, presumably indicating an institu-
tional charity drive (the example given being a United
Way campaign) where the scope is entirely under the
Employer’s control consistent with any concerns about
emails appearing in employees’ in-boxes during working
time. Nothing about the Employer’s policy unduly bur-
dens or discriminates against Section-7 related activity.
Under that approach, and for the other reasons stated
above, I find the Employer’s solicitation policy a lawful
effort to manage the usage of email consistent with its
stated concerns about distraction and interruption of pa-
tient care.
II. RESPONDENT’S ELECTRONIC MAIL AND
MESSAGING POLICY
I would also dismiss the allegation that the Respond-
ent’s electronic messaging policy is unlawful, thus re-
versing the judge’s finding that some of the language of
the policy is ambiguous and would chill employees in the
exercise of their Section 7 rights. Neither the judge nor
my colleagues find the violation under Purple Communi-
cations, but instead rely on the standard in, e.g., Lutheran
Heritage Village- Livonia, 343 NLRB 646 (2004), to find
that certain language in the policy would reasonably be
construed to reach activity protected by Section 7 of the
Act.10 Contrary to the majority and to the judge, howev-

10 In Lutheran Heritage Village, the Board affirmed that, where a
work rule does not explicitly restrict activity protected by the Act, it
may be found unlawful “upon a showing of one of the following: (1)
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
er, any finding that a policy might chill employees from
engaging in Section 7 protected activity flows from an
inherent presumption that there is a Section 7 right to be
on the Employer’s email system in the first place. In my
view there is not, and hence there is no protected activity
to chill. As for the judge’s error, he found that language
in the policy stating that Respondent’s electronic mes-
saging systems may not be used “[t]o promote illegal
activity or used in a way that may be disruptive, offen-
sive to others, or harmful to morale” was unlawful be-
cause it swept “broadly and ambiguously.” He then stat-
ed that, under Register-Guard,
. . . an employer cannot draw a distinction between
permitted and prohibited email usage based solely on
the Section 7 related content of the email. Indeed, in
Register-Guard the Board found a violation where the
employer disciplined an employee for using the email
system to send an email where “[t]he only difference
between [the employee’s] email and the emails permit-
ted by the Respondent is that [the employee’s] email
was union-related.”
Thus, the judge erroneously conflated ambiguity (which
depends on there being protected conduct to restrain, even
unintentionally) with discrimination along Section 7 lines,
which are conceptually quite different. As stated above, I
would not find a chilling effect because the employees do
not have a right to be on the Respondent’s email system, in
contrast from my reasons for finding aspects of the accepta-
ble use policy unlawful as described below.
In any event, however, I would dismiss the allegation
that the policy would unlawfully chill employees’ pro-
tected activity even assuming a right to use Respondent’s
email for Section 7 purposes. First, the prohibition on
activity using the Respondent’s own email and electronic
messaging systems that is “disruptive,” “offensive” or
“harmful to morale” would be reasonably read as of a
piece with the prohibition on activity that is illegal. See
University Medical Center v. NLRB, 335 F.3d 1079
(D.C. Cir. 2003) (reversing Board to find rule against
“disrespectful conduct” lawful).11 Employees would

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.”
Id. at 647. Here we are considering a policy falling under the first prong
of this standard—which is predicated on the presumption that the con-
duct being “chilled” is indeed protected.
11 The rule there prohibited “[i]nsubordination, refusing to follow
directions, obey legitimate requests or orders, or other disrespectful
conduct . . .” The court reversed the Board and found that the prohibi-
tion on “other disrespectful conduct” was of a piece with “insubordina-
tion,” and, in context, employees were unlikely read the rule as barring
Sec.7 conduct. Id. 1088–1089. See also Lutheran Heritage, above, 343
reasonably understand that the rule is designed to reach
serious misconduct that they engage in while using the
Respondent’s email, not their union or other protected
activity. These are, after all, hospital employees. They
are fully aware that issues of liability, the hospital’s right
and duty to maintain a safe, nonhostile work environ-
ment, basic civility on the Respondent’s business email,
and the patient-care setting require such policies for rea-
sons wholly unrelated to what might be their protected
activity. Moreover, these rules apply to the Respond-
ent’s systems, which employees are expected to be on for
business purposes. In this context and in light of the
above-described concerns about distraction and interrup-
tion of work, where emails are received by employees
during their worktime regardless of when they are sent,
these hardly draconian policies are reasonable, do not
forbid conduct that is an inherent aspect of protected
activity,12 and taken in context would not reasonably
dissuade employees from engaging in protected activity.
III. ACCEPTABLE USE OF INFORMATION TECHNOLOGY
RESOURCES POLICY
In contrast to the above, however, the Respondent
went too far with language in its “acceptable use of in-
formation technology resources policy.” I concur with
the finding of a violation in regard to this policy, with the
exception of the ban on use of logos, but only for the
reasons stated below.13 As the judge noted, the policy

NLRB at 647 (where rule did not refer to Sec. 7 activity, rejecting the
conclusion that a reasonable employee would read a rule to apply to
protected activity “simply because 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
Sec. 7 activity, even though that reading is unreasonable).
12 Palms Hotel & Casino, 344 NLRB 1363, 1367–1368 (2005) (law-
ful rule prohibited conduct that “is or has the effect of being injurious,
offensive, threatening, intimidating, coercing, or interfering with fellow
Team Members or patrons”).
13 Section 20 of this policy includes the following restrictions:
Without UPMC’s prior written consent, a UPMC workforce member
shall not independently establish (or otherwise participate in) web-
sites, social networks (such as face book, MySpace, peer-to-peer net-
works, twitter, etc.) electronic bulletin boards or other web-based ap-
plications or tools that:
 Describe any affiliation with UPMC;
 Make references to UPMC patients;
 Disparage or misrepresent UPMC,
 Make false or misleading statements regarding UPMC;
 Make promises or commitments by UPMC; or
 Use UPMCs logos or other copyrighted or trademarked
materials
(See UPMC Policy HS-PRJJOO titled “Use of UPMC
Name, Logo,and Tagline”)
UPMC 13
begins with a seemingly broad prohibition on any non-
work use applying to all use of Respondent’s electronic
communications equipment:
The UPMC information technology resources (com-
puters, servers, Internet, email, etc.) shall only be used
for supporting the business, clinical, research, and edu-
cational activities of UPMC workforce members . . .
However, the Respondent’s policy has a rather large
loophole. It provides that where a “UPMC technology
resource is assigned to an employee, the employee is
permitted de minimis personal use of the [resource] . . .”
De minimis is defined, contrary to the typical usage, in a
sweeping manner:
De minimis personal use” is defined as use of the in-
formation technology resource only to the extent that
such use does not affect the employee’s job perfor-
mance nor prevents other employees from performing
their job duties.
So, in essence, as long as an employee continues to
perform his or her job at an acceptable level, and does
not distract other employees, UPMC resources may be
used as much as the employee wants for personal en-
deavors. For example, the employee may apparently
spend large portions of time at work on the internet on
personal email or social media. However, all this comes
at a large price, and the price is the Respondent’s prior
restraint on the employee’s participation in internet dis-
course, wherever UPMC might be mentioned:
Without UPMC’s prior written consent, a UPMC
workforce member shall not independently establish
(or otherwise participate in) websites, social networks
(such as face book, MySpace, peer-to-peer networks,
twitter, etc.) electronic bulletin boards or other web-
based applications or tools that:
 Describe any affiliation with UPMC;
. . .
 Disparage or misrepresent UPMC,
 Make false or misleading statements regard-
ing UPMC
Insofar as this policy relates to an employee merely
accessing the internet using the Respondent’s terminal
assigned to that employee, the Respondent’s servers, and
the Respondent’s “dumb pipe,” I find the language pro-
hibiting employees from describing any affiliation with
the Respondent, disparaging or misrepresenting the Re-
spondent, and making false or misleading statements
regarding the Respondent to be unlawful.14
Under my view, one must determine the overall bal-
ance between the Respondent’s property rights and its
employees’ Section 7 rights. Here, the employer is ex-
pressly allowing its own electronic resources to be used
to contact the wider internet, so the Respondent logically
is not asserting a flat-use exclusion, based on its right to
exclude employees from personal use.15 Nor is the Re-
spondent asserting that such use of its property as an ac-
cess portal to the internet will inherently diminish the
value of its network, because it allows a substantial ag-
gregate amount of such use. Moreover, the actual com-
munications that will take place will exist on networks
that are not the Respondent’s property at all. Thus, Re-
spondent’s property interests in this case are qualified
and appear relatively modest.
On the other hand, the Section 7 interests in internet
communications are weighty. The internet approximates
the public square in the world of electronic communica-
tions, and this holds true for Section 7 rights as well. As
I described it in Purple Communications, the online
world is an “entire, and constantly expanding, ecosystem
of employee expression that allows employees to fully
engage in Section 7 communications without displacing
critical employer business systems.” Id., slip op at 61.
Here, Respondent is attempting to control what takes
place in this world, with obvious ramifications on what
would be Section 7 activity. While an employer policy
could prohibit libel or slander in a policy in these cir-

14 For First Amendment reasons and others, I would not find the
policy unlawful if it were restricted only to internal communications,
i.e. ones existing solely or primarily on the Respondent’s own business
communications networks. See supra and my dissent in Purple Com-
munications. The problem is that the policy affects what employees
can say about the employer across the much broader platform of the
internet, which is not Respondent’s property.
15 I do not reach the question here of whether an employer, in some
circumstances, might be required by the Act to allow its employees use
of its electronic resources for the purpose of reaching the broader inter-
net to engage Sec. 7 communications, i.e., “whether adequate avenues
of communication exist to effectively communicate about protected
concerted activity without the use of [such electronic resources]?” See
Purple Communications, id., slip op. at 38. Here, the Respondent un-
questionably permits employees to use its resources to access the inter-
net. However, it attempts to control the content of such communica-
tions by making the access conditional on its approval and indicates
strongly that opposition to the Respondent will not be approved. Alt-
hough I have First Amendment “coerced subsidy” concerns here as
well, I would find that they are so de minimis as to be akin to the “in-
voluntary easement” that Republic Aviation, 324 U.S. 793 (1945),
already permits for employees to use their employer’s physical property
for Sec. 7 communications on nonworktime. Stated otherwise, the
Supreme Court has never ruled in Republic Aviation or any of its prog-
eny that the employees must pay the employer some kind of rental
allowance in order to stand on its physical property and criticize it.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cumstances, the Respondent’s prohibitions against state-
ments that “[d]isparage or [m]isrepresent UPMC” and
against “false or misleading statements regarding
UPMC” are simply too broad under our precedent.16 As
the judge noted, these prohibitions pose a real danger of
chilling Section 7 activity, especially because affected
employees will have to self-identify and self-report to the
Respondent anything that the Respondent might regard
as disparaging, misleading, or false.
I agree with the judge as well that the prohibition “on
describing any affiliation with UPMC” is reasonably
read to prohibit employees from telling anyone where
they work, and would be “a restriction that severely in-
hibits discussion with others about the terms and condi-
tions and pluses and minuses of their work experience.”
I further agree that, therefore, the “prohibition would
greatly chill Section 7-related discussion,” although the
Respondent may have the legitimate underlying motive
of trying to curtail unauthorized representations of its
positions and policies on the wide scope of matters that
are discussed online. 17
Thus, the danger to Section 7 rights posed by this en-
tire system of regulation is significant. The Supreme
Court has commanded us that the destruction of Section
7 rights “must be as little as consistent with the mainte-
nance of” property rights. NLRB v. Babcock & Wilcox,
351 U.S. 105, 112 (1956). That command, combined
with our precedent under Lutheran Heritage Livonia,
results in me finding the above provisions unlawful. As I
have written before, the Board must “concern itself with
protecting Section 7 rights on [the] new frontier” of the
online world, Purple Communications, id. at 61, and this
is an ideal case to flesh out this principle. Unfortunately,
my colleagues continue with the blunderbuss approach
under Purple Communications, and so have incorrectly
declared much of the employer’s policies to be unlawful
in this case.18
A good example of this is the majority’s attack on the
Respondent’s trademark policy, which, unlike my col-
leagues, I find lawful. This provision states that employ-

16 Linn v. United Plant Guard Workers of America, Local 114, 383
U.S. 53 (1966) (finding of malice required to make out a defamation
claim arising from labor disputes).
17 Here, I fully recognize that Respondent has a legitimate interest in
prohibiting non-authorized employees from acting as representatives or
spokespeople for UPMC. But the rule in question prohibits identifying
any affiliation at all, which would include the basic identification of
oneself as an employee, an identification that regularly occurs in Sec-
tion 7 communications.
18 For the reasons stated by the judge, I agree that the provision related
to confidential information—which includes “Compensation Data,”
“Benefits Data,” “Staff Member (Co-Worker) Data,” and “Policies and
Procedures” is unlawful.
ees, while using the Respondent’s information technolo-
gy resources to access the Web or social media, may not
“[u]se UPMC’s logos or other copyrighted or trade-
marked materials.”
This provision is not drawn along Section 7 lines, and
nor would employees reasonably construe any restriction
on their Section 7 rights here, as the provision is clearly
meant to protect intellectual property and—more to the
point—protect the Respondent from statements made
using its electronic resources that could wrongly be at-
tributed to it. First, the Employer has a legitimate inter-
est in its branding and a legally protected property inter-
est in the use of its logos under trademark law wholly
unrelated from matters related to labor disputes or union
organizing. Under the reasonable construction prong of
Lutheran Heritage Village, above, employees would rea-
sonably understand that logo and trademark protections
are concerned with far broader intellectual property con-
cerns than with restricting Section-7 activity and would
not see the Respondent’s restriction as an infringement
on their Section 7 rights (e.g., workplace photographs or
parodies arising from labor disputes). Second, the lan-
guage must be read in the context of what immediately
precedes it in the sentence. Employees, using the Re-
spondent’s systems, may not “make promises or com-
mitments by UPMC; or [u]se UPMS’s logos or other
copyrighted or trademarked material . . .” Read in this
context, it would be clear to employees that the Re-
spondent’s concern here is misrepresentation, and the
possibility that a misrepresentation could give the im-
pression of binding the Respondent or attributing to it
some view that it does not hold. Thus the language is
largely concerned with the Respondent’s liability and
prohibits employees from using the Respondent’s own
electronic resources to use its trademarks and logos in a
manner that could give the impression that they were
speaking on Respondent's behalf. Particularly when em-
ployees publish material using the Respondent’s elec-
tronic resources, which exist for Respondent’s business
purposes, recipients may have the inaccurate impression
that an employee is acting in his or her official capacity
and that the views expressed may represent those of the
Employer’s.19 Thus, I find that employees would rea-
sonably understand the policy to reflect the Respondent’s
effort to control the use of its trademarked property in
communications that could be inaccurately construed as
being made on Respondents’ behalf, or in some manner
having the Respondent’s imprimatur.

19 In this respect, the instant case is distinguishable from Boch Hon-
da, 362 NLRB No. 83 (2015), relied on by my colleagues (a decision I
dissented from on other grounds).
UPMC 15
For the above reasons, I respectfully dissent.
Dated, Washington, D.C. August 27, 2015
______________________________________
Harry I. Johnson, III, Member
NATIONAL LABOR RELATIONS BOARD
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a Solicitation Policy that pro-
hibits you from using our email system to engage in so-
licitation, including communications that are protected
under Federal labor law, during nonworking time, and
that requires you to report violations of the Solicitation
Policy.
WE WILL NOT promulgate or maintain an Electronic
Mail and Messaging Policy that contains the following
language:
UPMC electronic messaging systems may not be used:
 To promote illegal activity or used in a way
that may be disruptive, offensive to others, or
harmful to morale; or
 To solicit employees to support any group or
organization, unless sanctioned by UPMC ex-
ecutive management;
 In a manner inconsistent with UPMC policies
and directives, including, but not limited to
policies concerning commercial communica-
tion, solicitation, sexual harassment, job per-
formance and appropriate Internet use.
WE WILL NOT promulgate or maintain an Acceptable
Use of Information Technology Resources Policy that
contains the following language:
UPMC workforce members shall only use UPMC in-
formation technology resources for authorized activi-
ties. Authorized activities are related to assigned job re-
sponsibilities and approved by the appropriate UPMC
management. To the extent that a UPMC information
technology resource is assigned to an employee, the
employee is permitted de minimis personal use of the
UPMC information technology resource.
“De minimis personal use” is defined as use of the in-
formation technology resource only to the extent that
such use does not affect the employee’s job perfor-
mance nor prevents other employees from performing
their job duties.
20. Without UPMC’s prior written consent, a UPMC
workforce member shall not independently establish
(or otherwise participate in) websites, social networks
(such as face book, MySpace, peer-to-peer networks,
twitter, etc.) electronic bulletin boards or other web-
based applications or tools that:
 Describe any affiliation with
UPMC;
….
 Disparage or Misrepresent
UPMC;
 Make false or misleading
statements regarding UPMC;
. . . .
 Use UPMC’s logos or other copyrighted or
trademarked materials (See UPMC Policy
HS-PR1100 titles “Use of UPMC Name,
Logo, and Tagline”).
. . . .
23. Sensitive, confidential, and highly confidential in-
formation transferred over the Internet shall use appro-
priate security controls and have the written approval of
UPMC’s Chief Information Officer or Privacy Officer.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the Solicitation Policy, the Electronic
Mail and Messaging Policy, and the Acceptable Use of
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Information Technology Resources Policy set forth
above.
WE WILL, along with UPMC, expunge the Solicitation
Policy, the Electronic Mail and Messaging Policy, and
the Acceptable Use of Information Technology Re-
sources Policy wherever those policies exist on a
systemwide basis at any and all UPMC, Presbyterian
Shadyside, and Magee-Womens Hospital facilities within
the United States and its territories.
WE WILL, along with UPMC, notify all our employees
at all our facilities within the United States and its territo-
ries where the Solicitation Policy, the Electronic Mail
and Messaging Policy, and the Acceptable Use of Infor-
mation Technology Resources Policy were in existence
that those policies have been rescinded and will no long-
er be enforced.
UPMC PRESBYTERIAN SHADYSIDE AND
MAGEE-WOMENS HOSPITAL OF UPMC
The Board’s decision can be found at
www.nlrb.gov/case/06–CA–081896 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Janice A. Sauchin, Esq. and Emily M. Sala, Esq. for the Acting
General Counsel.
Mark Stubley, Esq. and H. Ellis Fisher, Esq. (Ogletree,
Deakins, Nash, Smoak & Stewart, P.C.), of Greenville,
South Carolina, and Michael D. Glass, Esq. and Jennifer G.
Betts, Esq. (Ogletree, Deakins, Nash, Smoak & Stewart,
P.C.), of Pittsburgh, Pennsylvania, and Edward E. McGin-
ley, Jr., Esq. (UPMC Employee Relations), of Pittsburgh,
Pennsylvania, for the Respondents.
Claudia Davidson, Esq. (Law office of Claudia Davidson), of
Pittsburgh Pennsylvania, and Kathy L. Krieger, Esq. (James
& Hoffman, P.C.), and LaRell D. Purdie, Esq. (SEIU), and
Betty Grdina, Esq. (Mooney, Green, Saindon, Murphy &
Welch), of Washington, D.C., for the Charging Party.
DECISION
DAVID I. GOLDMAN, Administrative Law Judge. This case
involves the Government’s challenge to three policies main-
tained by an employer for the purpose of regulating employee
use of the employer’s electronic technology (e.g., email, com-
puters, servers, etc.). The Government alleges that the three
policies violate the National Labor Relations Act (the Act).
More specifically, the Government alleges that the policies are
overly broad and tend to chill activity protected by Section 7 of
the Act. As discussed herein, I find that two of the three chal-
lenged policies violate Section 8(a)(1) of the Act. I dismiss the
allegations regarding the third policy.
STATEMENT OF THE CASE
On May 25, 2012, SEIU Healthcare Pennsylvania, CTW,
CLC (the Union) filed an unfair labor practice charge against
UPMC and its subsidiary hospitals, docketed by Region 6 of
the National Labor Relations Board (the Board) as Case 06–
CA–081896. The Union filed an amended charge on June 21,
2012, a second amended charge on July 5, 2012, and a third
amended charge on November 19, 2012. On December 13,
2012, based on an investigation of the charge in this case, and
others filed by the Union,1 the Acting General Counsel (the
General Counsel) of the Board, by the Regional Director for
Region 6 of the Board, issued a complaint alleging violations of
the Act by Respondent UPMC, Respondent UPMC Presbyteri-
an Shadyside (Presbyterian Shadyside), and Respondent
Magee-Womens Hospital of UPMC (Magee), and an order
consolidating this case with other cases. An amended consoli-
dated complaint issued December 13, 2012. UPMC filed a
motion for summary judgment January 4, 2013, that was denied
by Order of the Board on January 28, 2013.
An order severing the other cases from the instant case is-
sued February 8, 2013, and a second amended complaint issued
February 11, 2013.
A hearing in the case was conducted February 20, 2013, in
Pittsburgh, Pennsylvania. At the hearing, counsel for the Gen-
eral Counsel moved, without objection, to amend the com-
plaint. That motion was granted. UPMC filed a motion for
judgment on the pleadings on February 22, 2013, which is ad-
dressed herein. Counsel for the General Counsel, the Union,
and the Respondents, filed briefs in support of their positions
by March 27, 2013. On the entire record, I make the following
findings, conclusions of law, and recommended Order.
Jurisdiction
It is alleged in the complaint, admitted by Respondents, and I
find, that Respondent Presbyterian Shadyside and Respondent
Magee are Pennsylvania nonprofit corporations with offices
and places of business in Pittsburgh, Pennsylvania, and have
been engaged in the operation of acute care hospitals providing
inpatient and outpatient medical care. It is further alleged,
admitted, and I find that each of these Respondents, during the
12-month period ending April 30, 2012, in conducting opera-
tions derived gross revenues in excess of $250,000 and pur-
chased and received at their respective facilities in Pittsburgh,
Pennsylvania, goods valued in excess of $50,000 directly from
points outside the Commonwealth of Pennsylvania. It is further
alleged, admitted, and I find, that Respondent Shadyside Pres-

1 Cases 06–CA–086542, 06–CA–090063, 06–CA–090133, and 06–
CA–090144.
UPMC 17
byterian and Respondent Magee are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
health care institutions within the meaning of Section 2(14) of
the Act. I further find that Respondent Presbyterian Shadyside
and Respondent Magee are employers within the meaning of
Section 2(2) of the Act. Based on the foregoing, I find that this
dispute affects commerce and that the Board has jurisdiction of
this case, pursuant to Section 10(a) of the Act.
Unfair Labor Practices
Background
This case, and the other cases noted above, were originally
scheduled for a February 5, 2012 hearing. These cases in-
volved scores of allegations of violations of the Act by Re-
spondents. As February 5, drew near, the parties were actively
engaged in settlement negotiations and as a consequence the
hearing was postponed. Those negotiations bore fruit, and on
February 7, 2013, the Regional Director approved a settlement
agreement between Respondents (at that time including UPMC)
and the Union. The settlement resolved most of the outstanding
allegations. Respondents posted Board-approved notices at
nearly 100 locations and agreed to reinstate and pay backpay to
employees against whom they had allegedly discriminated. By
entering into the settlement agreement, Respondents did not
admit to any violations of the Act.2
Left unresolved by the settlement was the Government’s
challenge to certain of Respondents’ policies concerning em-
ployee usage of Respondents’ email and electronic media. The
lawfulness of the promulgation and maintenance of these poli-
cies is the remaining subject of this case to be resolved.
Factual Findings
UPMC is a holding company that owns subsidiaries that op-
erate 20 hospitals in Pennsylvania, with the majority of them
located in the Pittsburgh area. UPMC, through its subsidiaries,
has over 55,000 employees.
The facilities in the Pittsburgh area that UPMC owns are:
Childrens’ Hospital, UPMC East, Eye & Ear Institute, Mon-
tefiore Hospital, Passavant Hospital, St. Margaret’s Hospital,
McKeesport Hospital, Mercy Hospital, Western Psychiatric
Institute and Clinic, Magee–Womens Hospital, Presbyterian
Hospital, and Shadyside Hospital. UPMC, through its various
subsidiaries, also operates over 400 clinical locations in West-
ern Pennsylvania, including CancerCenters, Imaging Centers,
Outpatient Facilities, Urgent Care Facilities, and Senior Com-
munities.
Respondent Presbyterian Shadyside is a subsidiary of
UPMC, and employs more than 9500 employees. Presbyterian
Shadyside includes the following facilities: Eye & Ear Institute,
Montefiore Hospital, Presbyterian Hospital, Shadyside Hospi-
tal, and Western Psychiatric Institute and Clinic. All of these
facilities, except Shadyside Hospital, are located in the Oakland
area of Pittsburgh, and are interconnected by pedestrian bridg-
es, walkways, and parking garages. Shadyside Hospital is lo-
cated approximately 1 mile away from the Oakland hospitals.

2 Copies of the settlement agreement and notice postings were en-
tered into evidence and may be found at Jt. Exhs. 3 and 4.
Respondent Magee is a subsidiary of UPMC, and employs
more than 2500 employees. Magee-Womens Hospital is located
in the Oakland area of Pittsburgh, several blocks away from
Montefiore Hospital.
UPMC has delegated most of its policy-making functions to
certain officials of Respondent Presbyterian Shadyside.
Respondent Presbyterian Shadyside, through certain of its
officials such as Senior Vice President Gregory Peaslee and
Vice President, Privacy and Information Security & Assistant
Counsel John Houston, promulgates and maintains personnel
and human resources policies which are applicable to all em-
ployees of UPMC’s subsidiaries, including the facilities refer-
enced above. These policies include the solicitation, electronic
mail and messaging, and acceptable use of information tech-
nology resources policies at issue in the instant proceeding.
Respondents maintain a “UPMC Infonet” website which is
not accessible to the general public and is exclusively for Re-
spondents’ communications with employees.
All of Respondents’ personnel and human resources policies
are maintained on the UPMC Infonet, which is password-
protected. All employees are given passwords with which to
access the Infonet. There are computers in certain departments
or work areas of Respondents’ facilities which can be accessed
by multiple employees. Not all of Respondents’ employees
have email addresses within UPMC’s electronic mail system.
The Three Challenged Policies
This case involves the General Counsel’s and the Union’s
challenge to three policies maintained by Respondents: a solic-
itation policy, an electronic mail and messaging policy, and an
acceptable use of information technology resources policy. The
pertinent text of each policy is set forth below.
1. Solicitation Policy
Respondent Presbyterian Shadyside and Respondent Magee
maintained a solicitation policy, dated December 15, 2011,
until October 9, 2012. It was revised October 10, 2012, in cer-
tain respects not relevant to this case, and maintained and pub-
lished since that time on Respondents’ UPMC Infonet. The
policies, read, in pertinent part, as follows:
IV. Procedure
. . . .
C. No staff member may distribute any form of literature that
is not related to UPMC business or staff duties at any time in
any work, patient care, or treatment areas. Additionally, staff
members may not use UPMC electronic messaging systems
to engage in solicitation (see also Policy HS-IS0147 Electron-
ic Mail and Messaging).
. . . .
F.[3] All situations of unauthorized solicitation or distribution
must be immediately reported to a supervisor or department
director and the Human Resources Department and may sub-
ject the staff member to corrective action up to and including
discharge.

3 This par. “F” became par. “G” in the October 10 revision.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Electronic Mail and Messaging Policy
Since about February 1 to about October 25, 2012, and from
October 26 to December 6, 2012, and from December 7, 2012,
to present, Respondent Presbyterian and Respondent Magee
have maintained versions of an electronic mail and messaging
policy which read, in pertinent part, as follows:
IV. Definitions
Electronic Messaging System(s): Any UPMC sponsored e-
mail or other electronic messaging system (including instant
messaging systems), that is used to conduct UPMC business
and has the capability to create, send, receive, forward, reply
to, transmit, store, copy, download, or display electronic mes-
sages for purposes of communication across computer net-
works among individuals and groups.
. . . .
V. GUIDELINES
. . . .
2. UPMC electronic messaging systems may not be used:
 To promote illegal activity or used in a way that
may be disruptive, offensive to others, or harmful
to morale; or
 To solicit employees to support any group or or-
ganization, unless sanctioned by UPMC executive
management;
 In a manner inconsistent with UPMC policies and
directives, including, but not limited to policies
concerning commercial communication, solicita-
tion, sexual harassment, job performance and ap-
propriate Internet use.
3. Acceptable use of Information Technology
Resources Policy
Respondents promulgated an “Acceptable Use of Infor-
mation Technology Resources” policy dated October 10, 2011.
It was modified July 27, 2012, and again on December 7, 2012.
It has remained in effect since then. All versions of the policy
include, in pertinent part:
I. POLICY
The UPMC information technology resources (computers,
servers, Internet, e-mail, etc.) shall only be used for support-
ing the business, clinical, research, and educational activities
of UPMC workforce members.
. . . .
II. PURPOSE
To establish guidelines for:
1. The acceptable use of UPMC information technology re-
sources.
2. Ensuring that appropriate security controls are implemented
on UPMC information technology resources.
3. Ensuring that all software is appropriately licensed and
used in a manner consistent with the software’s license terms
and conditions.
. . . .
IV. REQUIREMENTS
1. UPMC workforce members shall only use UPMC infor-
mation technology resources for authorized activities. Author-
ized activities are related to assigned job responsibilities and
approved by the appropriate UPMC management. To the ex-
tent that a UPMC information technology resource is assigned
to an employee, the employee is permitted de minimis per-
sonal use of the UPMC information technology resource.
“De minimis personal use” is defined as use of the infor-
mation technology resource only to the extent that such use
does not affect the employee’s job performance nor prevents
other employees from performing their job duties.
. . . .
20. Without UPMC’s prior written consent, a UPMC work-
force member shall not independently establish (or otherwise
participate in) websites, social networks (such as Facebook,
MySpace, peer-to-peer networks, Twitter, etc.) electronic bul-
letin boards or other web-based applications or tools that:
 Describe any affiliation with UPMC;
. . . .
 Disparage or Misrepresent UPMC;
 Make false or misleading statements regarding
UPMC;
. . . .
 Use UPMC’s logos or other copyrighted or trade-
marked materials (See UPMC Policy HS-PR1100
titles “Use of UPMC Name, Logo, and Tagline”).
. . . .
23. Sensitive, confidential, and highly confidential infor-
mation transferred over the Internet shall use appropriate se-
curity controls and have the written approval of UPMC’s
Chief Information Officer or Privacy Officer.
Summary of Challenged Policies
To summarize, with an eye toward the General Counsel’s
and the Union’s challenge to these policies:
1. The solicitation policy prohibits employees from using
the UPMC email system “to engage in solicitation.” It also
mandates that all “unauthorized solicitation” be reported to a
supervisor or manager and warns that violations may lead to
“corrective action up to and including discharge.”
2. The electronic mail and messaging policy prohibits em-
ployees from using the email system “in a way that may be
disruptive, offensive to others, or harmful to morale;” or “[t]o
solicit employees to support any group or organization, unless
sanctioned by UPMC executive management.” In addition, this
policy prohibits use of the email system “in a manner incon-
sistent with UPMC policies and directives, including, but not
limited to . . . job performance.”
3. Finally, the acceptable use of information technology re-
sources policy restricts use of UPMC “computers, servers, In-
UPMC 19
ternet e-mail, etc.” to support “the business, clinical, research,
and educational activities of UPMC workforce members.” It
restricts use of these resources to “authorized activities” which
are defined as “related to assigned job responsibilities and ap-
proved by the appropriate UPMC management.” However, the
policy provides that where a “UPMC technology resource is
assigned to an employee, the employee is permitted de minimis
personal use of the [resource],” defined as use of the resource
“only to the extent that such use does not affect the employee’s
job performance [ ]or prevent[ ] other employees from perform-
ing their job duties.”
The acceptable use of information technology resources pol-
icy also prohibits employees, “[w]ithout UPMC’s prior written
consent,” from “independently establish[ing] (or otherwise
participat[ing] in) websites social networks (such as Facebook,
MySpace, Peer-to-Peer networks, Twitter, etc.) electronic bul-
letin boards or other web-based applications or tools that” de-
scribe any affiliation with UPMC, disparage or misrepresent
UPMC, make false or misleading statements regarding UPMC,
or using UPMC logos or other copyrighted or trademarked
materials. This policy also requires “written approval of
UPMC’s Chief Information Office or Privacy Officer” and the
use of “appropriate security controls” for any “[s]ensitive, con-
fidential, and highly confidential information transferred over
the Internet.”
Analysis
The General Counsel and the Union contend that the prom-
ulgation and maintenance of the solicitation, electronic mail,
and information technology policies constitute overly broad
limitations on the right of employees to communicate regarding
activities protected by the Act. As such, it is their contention
that these policies on their face—without regard to intent or
actual application—violate Section 8(a)(1) of the Act. In def-
erence to the 6-month statute of limitations set forth in Section
10(b) of the Act, the complaint alleges that the violations began
and have been occurring at all times since February 1, 2012
(even though the enactment of each policy precedes that date).
The cornerstone of the Act is Section 7, which provides that
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and shall also have
the right to refrain from any or all of such activities . . . .
The United States Supreme Court has long recognized that
“the right of employees to self-organize and bargain collective-
ly established by § 7 of the [Act] necessarily encompasses the
right effectively to communicate with one another regarding
self-organization at the jobsite.” Beth Israel Hospital v. NLRB,
437 U.S. 483, 491 (1978). As the Supreme Court has recog-
nized, the workplace “is a particularly appropriate place for the
distribution of § 7 material, because it ‘is the one place where
[employees] clearly share common interests and where they
traditionally seek to persuade fellow workers in matters affect-
ing their union organizational life and other matters related to
their status as employees.’” Eastex, Inc. v. NLRB, 437 U.S.
556, 574 (1978), quoting Gale Products, 142 NLRB 1246
(1963). Accord: Central Hardware Co. v. NLRB, 407 U.S. 539,
542–543 (1972) (“[Section 7] organization rights are not viable
in a vacuum; their effectiveness depends in some measure on
the ability of employees to learn the advantages and disad-
vantages of organization from others. Early in the history of
the administration of the Act the Board recognized the im-
portance of freedom of communication to the free exercise of
organization rights.” (Citations omitted.) In short, “the ability
of employees to communicate with their fellow employees in
the workplace” is “central to Sec. 7.” J. W. Marriott Los Ange-
les at L.A. Live, 359 NLRB No. 8, slip op. at 3 fn. 4 (2012).
Of course, employees’ Section 7 right to communicate in the
workplace is not boundless. “‘[The Board must adjust] the
undisputed right of self-organization assured to employees
under the Wagner Act and the equally undisputed right of em-
ployer to maintain discipline in their establishments. Like so
many others, these rights are not unlimited in the sense that
they can be exercised without regard to any duty which the
existence of rights in others may place upon employer or em-
ployee.’” Beth Israel Hospital v. NLRB, 437 U.S. at 492, quot-
ing, Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797–798
(1945) (Court’s bracketing).
In considering the propriety of employer rules limiting or
governing employee communication in the workplace, the
Board balances the Section 7 rights of employees and the rights
and interests of employers. Republic Aviation, supra at 797–
798. As the Supreme Court explained in Hudgens v. NLRB,
424 U.S. 507, 522 (1976), “the locus of the accommodation
[between the legitimate interests of both] may fall at differing
points along the spectrum depending on the nature and strength
of the respective § 7 rights and private property rights asserted
in any given context.” (Internal quotes and bracketing omitted.)
As part of balancing theses interests, the Board has devel-
oped presumptions and rules on when employer property rights
must give way to employees’ Section 7 rights, and vice versa.
Thus, bans on employee Section 7 solicitation at an employer’s
facility that apply to nonworking areas during nonworking time
are presumptively unlawful. In the other direction, the Board
has held that, at least where there is alternative means of com-
munication, an employer’s property interest in its equipment
can displace employee Section 7 rights and an employer can
ban the use of its equipment—in this case, most pertinently
email and electronic resources—for Section 7 purposes, as long
as the ban is nondiscriminatory.
The Board’s test for evaluating allegedly overbroad and/or
ambiguous rules—the particular issues at bar here—emerged
from this balancing of employee and employer rights. The
Board recognizes that rules that are overly broad or ambiguous
may reasonably be read to ban some employee activity that
employers are permitted to ban under the Board’s balancing
tests, but also may be read to ban employee activity that is pro-
tected under Board tests. If the rule is overly broad and unclear
the rule may have a tendency to chill employees in the exercise
of protected Section 7 activity while permitting a range of other
activity, and this may be so regardless of whether the employer
so intends or lawfully can apply the rule in that fashion. Rules
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that are ambiguous and overly broad so that they reasonably
chill protected activity are violative of the Act.
Thus, “[i]n determining whether a work rule violates Section
8(a)(1), the appropriate inquiry is whether the rule would rea-
sonably tend to chill employees in the exercise of their Section
7 rights.” Hyundai American Shipping Agency, 357 NLRB No.
80 (2011). “Where the rules are likely to have a chilling effect
on Section 7 rights, the Board may conclude that their mainte-
nance is an unfair labor practice, even absent evidence of en-
forcement.” Lafayette Park Hotel, 326 NLRB 824, 825 (1998)
(footnote omitted), enfd. 203 F.3d 52 (D.C. Cir. 1999). “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 isolation.” Lutheran
Heritage Village-Livonia, 343 NLRB 646, 646 (2004).
If the rule explicitly restricts Section 7 rights, it is unlawful.
Lutheran Heritage, supra at 646. If it does not, “the violation is
dependent upon a showing of one of the following: (1) employ-
ees 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.” Id. at 647.
In the instant case, there is neither evidence nor allegation
that the challenged rules were promulgated in response to union
activity. There is no claim that the rules have been discrimina-
torily applied. Rather, in this case the claim is that the chal-
lenged rules are overbroad or ambiguous and will reasonably
tend to chill employees in the exercise of their rights under
Section 7. As the Board has recently explained, when a rule is
unduly ambiguous, “[e]ven if the Respondent . . . [does] not
intend the rule to extend to protected communications, that
intent was not sufficiently communicated to the employees. It
is settled that ambiguity in a rule must be construed against the
respondent-employer as the promulgator of the rule.”
DirectTV, 359 NLRB No. 54, slip op. 2 (2013), citing Lafayette
Park Hotel, supra at 828 (even if rule not intended to reach
protected conduct, its lawful intent must be “clearly communi-
cated to the employees”). “As the mere maintenance of the rule
itself serves to inhibit the employees’ engaging in otherwise
protected organizational activity, the finding of a violation is
not precluded by the absence of specific evidence that the rule
was invoked as any particular date against any particular em-
ployee.” Farah Mfg. Co., 187 NLRB 601, 602 (1970), enfd.
450 F.2d 942 (5th Cir. 1971).
1. Solicitation policy
Turning to the policies at issue, Respondents’ solicitation
policy prohibits the use of email for all nonwork solicitation.
There are no other limitations or qualifications.
In determining whether a rule is overly broad or ambiguous,
such that it will have a reasonable tendency to chill protected
conduct, reference, of course, must be made to the backdrop
balancing test that the Board has developed for the type of con-
duct the rule regulates. And under current Board precedent,
this poses a problem for the General Counsel’s argument that
the solicitation policy is unlawfully overbroad.
When a workplace rule involves the employees’ right to use
a particular item of employer equipment to engage in Section 7
communications, and with regard to use of email and electronic
messaging systems in particular, the Republic Aviation balanc-
ing that governs face-to-face communication has been re-
drawn—indeed, discarded—in favor of employer property
rights and at the expense of employee rights under the Act.
In Register-Guard, 351 NLRB 1110 (2007), enfd. in part,
denied in part 571 F.3d 53 (D.C. Cir. 2009), the Board consid-
ered a rule that barred use of the employer’s email system for
nonwork-related solicitation. Rejecting the balancing of Re-
public Aviation, the Board majority in Register-Guard held that
“the Respondent’s employees have no statutory right to use the
Respondent’s email system for Section 7 purposes” and that the
employer “may lawfully bar employees’ nonwork-related use
of its email system, unless the Respondent acts in a manner that
discriminates against Section 7 activity.” 351 NLRB at 1110,
1116. In reaching this result, the majority in Register-Guard
equated the employer’s email system and the issue at stake
“with a long line of cases governing employee use of employ-
ee-owned equipment,” and found that “’[a]n employer has a
basic property right’ to ‘regulate and restrict employee use of
company property.’ Union Carbide Corp. v. NLRB, 714, 657,
663–664 (6th Cir. 1983).” Register-Guard, supra at 1114.
In addition, although the instant case presents a facial chal-
lenge to the employer’s rule, and not a claim of discriminatory
enforcement of an otherwise valid rule, it is relevant to the
discussion to note that the Board majority in Register-Guard
adopted a new rule for determining when an employer’s dis-
criminatory application of a facially neutral rule violates Sec-
tion 8(a)(1). The Board majority redrew the line of objectiona-
ble discrimination in a way that allowed employers far more
leeway to draw lines between permitted and nonpermitted com-
munication, even if the right to Section 7 communication was
adversely affected by the line drawing. Thus, the Board in
Register-Guard found that it was not unlawful for an employer
to permit widespread personal use of email by employees but
draw a line disciplining employees who engaged in solicitation
on behalf of other organizations, including unions.
It must be stressed, however, that while Register-Guard pro-
vided employers with significant discretion to establish rules
for prohibiting employee email usage for nonwork activity, the
decision did not provide employers with unlimited discretion to
promulgate or enforce rules that discriminate against Section 7
activity in the use of employer-owned email and electronic
messaging systems. The Register-Guard decision made clear
that “drawing a distinction along Section 7 lines” remains un-
lawful. For instance, an employer cannot permit employees to
use its email system to communicate antiunion messages, but
prohibit its use by employees for prounion messages. Register-
Guard, supra at 1118. It cannot single out unions, or union
organizational activity, or employee discussion of wages and
working conditions for narrow prohibition, while allowing
comparable discussion or solicitation on every other similar
subject. It cannot engage in such viewpoint discrimination.
See Register-Guard, supra at 1119 (violation found where
“[t]he only difference between [the employee’s] email and the
emails permitted by the Respondent is that [the employee’s]
email was union-related”). See Guard Publishing v. NLRB,
571 F.3d 53, 60 (D.C. Cir. 2009) (rejecting Board’s dismissal
UPMC 21
of an allegation in Register-Guard, because “substantial evi-
dence does not support the Board’s determination that [the
employee] was disciplined for a reason other than that she sent
a union-related e-mail”); see also Costco Wholesale Corp., 358
NRB No. 106 (2012).
In this case, the Respondents’ solicitation policy bars all
nonwork solicitation. Other nonwork use of the email system is
not barred, but the line is drawn based on solicitation/
nonsolicitation generally, not on Section 7 lines. Under Regis-
ter-Guard, the solicitation policy is lawful. It bars no Section 7
activity that the Board has found takes precedence over an em-
ployer’s assertion of a property right to bar generally nonwork
solicitation.4
The Union also contends (CP Br. at 15) that the solicitation
policy’s requirement that “unauthorized solicitation or distribu-
tion must be immediately reported to a supervisor [or manag-
er]” constitutes an unlawful interference with protected activi-
ties, citing cases such as Greenfield Die & Mfg. Corp., 327
NLRB 237, 238 (1998), and cases cited therein. However,
those cases are distinguishable. They find unlawful employer
invitations
to report instances of fellow employees’ bothering, pressur-
ing, abusing, or harassing them with union solicitations and
imply and imply that such conduct will be punished. [The
Board] has reasoned that such announcements from the em-
ployer are calculated to chill even legitimate union solicita-
tions, which do not lose their protection simply because a so-
licited employee rejects them and feels “bothered” or “har-
assed” or “abused” when fellow workers seek to persuade
him or her about the benefits of unionization.
Greenfield Die & Mfg., 327 NLRB at 238.
In this case, reasonably read, the solicitation policy’s report-
ing requirement is tailored to a requirement that substantive
violations of the solicitation policy be reported. As discussed
above, this is a lawful policy under Register-Guard, supra.
Given that, it is not unlawful to require employees to report
violations.
I will dismiss the allegations of the complaint alleging that
the solicitation policy is unlawful.
2. Electronic mail and messaging policy
The electronic mail and messaging policy is a very different
policy than the solicitation policy. It does not prohibit the
nonwork use of or solicitation through the email system, open-
ing the way for employees to use the email system for a range
of nonwork activity. Its limitations on nonwork use bear scru-
tiny.
First, the distinction between the type of nonwork use per-
mitted and prohibited is stated in broad and ambiguous terms,

4 The General Counsel and the Union argue that Register-Guard
should be overruled. This argument must await consideration by the
Board. My charge is to apply Board precedent. Waco Inc., 273 NLRB
746, 749 fn. 14 (1984) (“We emphasize that it is a judge’s duty to apply
established Board precedent which the Supreme Court has not reversed.
It is for the Board, not the judge, to determine whether that precedent
should be varied.”) (Citation omitted); Pathmark Stores, 342 NLRB
378 fn. 1 (2004).
indicating only that the policy bars nonwork use that “may be
disruptive,” or “offensive” or “harmful to morale.” Second,
under this policy, solicitation is barred only if it seeks to have
employees “support any group or organization,” and even that
is permitted if it is “sanctioned by UPMC executive manage-
ment.”
Thus, this policy does not bar all employee nonwork use of
email, but only some nonwork use of email. Considering the
first limitation, nonwork email usage is allowed unless the us-
age “may be disruptive,” or is “offensive,” or “harmful to mo-
rale.”
These terms—and there are no illustrations or guidance pro-
vided that would assist an employee in interpreting them—
sweep broadly and ambiguously. It is clear that these terms
would reasonably be understood to include a spectrum of com-
munication about unions, and, indeed, criticism of Respond-
ents’ working conditions, while permitting widespread
nonwork use of the email system for an array other subjects.5
The result is that this ambiguous rule, while permitting a
range of nonwork use of email, would reasonably chill employ-
ee use of the email system to discuss any Section 7 activity,
which, of course, includes not only discussion of organizing a
union but any concerted discussion of employment conditions.
This is a violation of the Act under longstanding Board prec-
edent. And nothing in Register-Guard overturns, reorders, or
renders irrelevant the Board’s longstanding approach to overly
broad and ambiguous employer rules. To be sure, Register-
Guard moved the marker guiding distinctions an employer can
draw between prohibited and permitted communications. But
an employer’s discretion to draw lines that permit some
nonwork use but prohibit Section 7-related use of the email
system is not unlimited. Where an employer’s rule permits
nonwork use of email, a vague and overly broad rule about the
email usage presents the same problem for employees that the
Board confronts in every case where the rule sweeps broadly
and ambiguously through Section 7 rights.
That is, the employer has “failed to define the area of per-
missible conduct in a manner clear to employees and thus
caused employees to refrain from engaging in protected activi-
ties.” American Cast Iron Pipe Co. v. NLRB, 600 F.2d 132, 137
(8th Cir. 1979). Employees confronting an employer’s rule
“should not have to decide at their own peril what information

5 Karl Knauz Motors, 358 NLRB No. 164 (2012) (“Courtesy” rule
unlawful because its broad prohibition against being “disrespectful”
using “language which injures the image or reputation” of the employ-
er, would reasonably be construed by employees as encompassing Sec.
7 activity such as statements to coworkers objecting to working condi-
tions and seeking support of others in improving them); Claremont
Resort & Spa, 344 NLRB 832, 832 (2005) (“We find that the rule’s
prohibition of ‘negative conversations’ about managers would reasona-
bly be construed by employees to bar them from discussing with their
coworkers complaints about their managers that affect working condi-
tions, thereby causing employees to refrain from engaging in protected
activities. Accordingly, the rule is unlawful under the principles set
forth in Lutheran Heritage Village-Livonia”); University Medical Cen-
ter, 335 NLRB 1318, 1320–1322 (2001) (rule against “disrespectful
conduct” toward others unlawful), enf. denied in relevant part 335 F.3d
1079 (D.C. Cir. 2003).
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
is not lawfully subject to such a prohibition.” Hyundai America
Shipping Agency, 357 NLRB No. 80, slip op. at 12 (2011),
cited in DirectTV, 359 NLRB No. 54, slip op. at 3 (2013).
Such ambiguity and over breadth is unlawful precisely because
it chills Section 7 activity—an employee will reasonably avoid
Section 7 activity precisely out of concern that the employer
may apply the rule in a manner that impermissibly singles out
Section 7 activity. This is the very essence of the problem that
the Board precedent is designed to prevent. That is why
Board law is settled that ambiguous employer rules—rules
that reasonably could be read to have a coercive meaning—
are construed against the employer. This principle follows
from the Act’s goal of preventing employees from being
chilled in the exercise of their Section 7 rights—whether or
not that is the intent of the employer—instead of waiting until
that chill is manifest, when the Board must undertake the dif-
ficult task of dispelling it.
Flex Frac Logistics, LLC, 358 NLRB No. 127, slip op. at 2
(2012).
It is no answer for an employer to retort: “employees have no
statutory right under Register-Guard to use the email system
for Section 7 purposes, so they should presume that a vague
rule prevents all use of the email system for Section 7 purposes,
and does so in lawful way.” Under Register-Guard, an em-
ployer cannot draw a distinction between permitted and prohib-
ited email usage based solely on the Section 7 related content of
the email. Indeed, in Register-Guard the Board found a viola-
tion where the employer disciplined an employee for using the
email system to send an email where “[t]he only difference
between [the employee’s] email and the emails permitted by the
Respondent is that [the employee’s] email was union-related.”
Register-Guard, supra at 1119.
Thus, nothing in Register-Guard permits facially overbroad
and vague email rules. Indeed, the Board has explained its
understanding of Register-Guard in just this way.
In Costco Wholesale Corp., 358 NRB No. 106 (2012), the
Board considered a handbook rule maintained for employees
entitled “Electronic Communications and Technology Policy.”
The rule governed “electronic communications for business
use” and warned that “[m]isuse or excessive personal use of
Costco technology or electronic communications is a violation
of company policy for which you may be disciplined, up to and
including termination of employment.” The policy required,
inter alia, that
Any communication transmitted, stored or displayed electron-
ically must comply with the policies outlined in the Costco
Employee Agreement. Employees should be aware that
statements posted electronically (such as online message
boards or discussion groups) that damage the Company, de-
fame any individual or damage any person’s reputation, or vi-
olate the policies outlined in the Costco Employee Agree-
ment, may be subject to discipline, up to and including termi-
nation of employment.
The Board found this workplace rule unlawful. In doing so the
Board went out of its way to specifically address Register-
Guard, and distinguish it. The Board in Costco explained that
the
rule does not implicate Board’s holding in Register-Guard,
351 NLRB 1110 (2007), enfd. in relevant part 571 F.3d 53
(D.C. Cir. 2009). The issue in Register-Guard was whether
employees had a statutory right to use their employer’s email
system for Sec. 7 purposes. The Board found that the em-
ployer did not violate Sec. 8(a)(1) by prohibiting the use of
the employer’s email for “nonjobrelated solicitations.” Here,
the rule at issue does not prohibit using the electronic com-
munications system for all non-job purposes, but rather is rea-
sonably understood to prohibit the expression of certain pro-
tected viewpoints. In doing so, the rule serves to inhibit cer-
tain kinds of Sec. 7 activity while permitting others and, for
this reason, violates Sec. 8(a)(1).
358 NLRB at slip op. at 2 fn. 6 (parallel citations omitted).
The Board’s reasoning in Costco is on point here. Precisely
as in Costco, here Respondents’ electronic mail and messaging
policy does not prohibit using the electronic communications
system for all nonjob purposes, but rather, bars only vaguely
characterized types of communications (e.g., communications
that may be “disruptive,” “offensive” or “harmful to morale”).
Precisely as in Costco, the rule at issue “is reasonably under-
stood to prohibit the expression of certain protected viewpoints.
In doing so, the rule serves to inhibit certain kinds of Sec. 7
activity while permitting others and, for this reason, violates
Sec. 8(a)(1).”6

6 Notably, Respondents’ contention that the rule at issue in Costco
did not involve use of the employer’s electronic resources is in error.
See 358 NLRB No. 106, slip op. at 7–8.
Respondents also contend (R. Br. at 32) that the Board’s recent deci-
sion in DirectTV, 359 NLRB No. 54 (2013) undermines—or is incon-
sistent with—the Board’s decision in Costco. Respondents’ contention
is based on a misreading of DirectTV. In DirectTV, an administrative
law judge ruled (slip op. at 21):
Regarding handbook provision 21.4 Use of Company Systems,
Equipment and Resources, the General Counsel maintains that even
though the Respondent prohibits “use of company property,” namely
company systems, equipment and resources, which includes the Re-
spondent’s email system, for purposes “of any religious, political, or
outside organizational activity,” this blanket prohibition should be
found impermissible regarding Section 7 activity as it unduly restricts
union and protected concerted activities. The General Counsel, citing
Register-Guard, 351 NLRB 1110 (2007), acknowledges that the
Board has recently resolved the issue. I agree. I shall dismiss this al-
legation of the complaint.
The Board agreed with the Judge that the policy was lawful under
Register-Guard. (Slip op. at 1 fn. 2.)
Respondents argue that this decision is at odds with the decision in
Costco, because the full policy, as set forth in the ALJ’s decision, like
the policy in Costco, involved arguably ambiguous limitations on per-
sonal usage such as “questionable subject matter.” However, it is ap-
parent from the ALJ’s reasoning (reproduced in full here), and the
Board’s endorsement of it, that the ALJ did not consider the lawfulness
of that aspect of the policy. It is not mentioned in his analysis. Rather,
the ALJ’s ruling considered only whether a rule permitting the use of
the email system by employees could exclude use for purposes “of any
religious, political, or outside organizational activity.” Under Register-
Guard, such a rule is lawful. But, as discussed in the text, Costco con-
UPMC 23
Independently, the electronic mail and messaging policy’s
ban on solicitation that seeks to have employees “support any
group or organization, unless sanctioned by UPMC executive
management,” is also violative of the Act.
It would be one thing, pursuant to Register-Guard, to prom-
ulgate a rule barring use of an employer’s email system for
nonwork matters, including Section 7 solicitation (i.e., Re-
spondents’ solicitation policy, discussed above). And it would
be one thing, pursuant to Register-Guard, to bar solicitation in
support of any group or organization. However, a rule barring
solicitation for groups or organizations “unless sanctioned by
UPMC executive management” holds out the prospect that
there are groups and organizations on whose behalf employees
will be permitted to solicit—as long as UPMC executive man-
agement approves.
A rule providing for a management approval process for cer-
tain viewpoints and certain organizations is antithetical to Sec-
tion 7 activity and a reasonable employee will be chilled from
even asking. As with any overly broad and ambiguous rule, the
employer has effectively chilled Section 7 activity without
expressly prohibiting it. “In doing so, the rule serves to inhibit
certain kinds of Sec. 7 activity while permitting others and, for
this reason, violates Sec. 8(a)(1).” Costco, supra. “The Act’s
goal of preventing employees from being chilled in the exercise
of their Section 7 rights—whether or not that is the intent of the
employer” requires the Board, “instead of waiting until that
chill is manifest,” to “undertake the difficult task of dispelling
it.” Such rules chill Section 7 activity precisely because the
employees must seek permission to engage in such solicitation.
In this regard Respondents’ rule here is squarely analogous
to the no-access rule found unlawful in J. W. Marriott Los An-
geles, 359 NLRB No. 8 (2012). In J. W. Marriott, the Board
found unlawful an employer rule that barred access by offduty
employees to the interior of the employer’s facility except with
“prior approval from your manager.” In doing so, the Board
rejected the argument that “no Sec. 7 right is at issue because
‘there is no Section 7 right of off duty employees to access the
interior of an employer’s facility” (359 NLRB No. 8, slip op. 3
fn. 4) (internal quotations omitted), an argument equally appli-
cable here, as there is no statutory right to use the employer’s
email system for Sec. 7 purposes. Register-Guard, supra. The
Board in J. W. Marriott, supra, slip op. at 2, held that notwith-
standing that there is no Section 7 right for offduty employees
to access the interior of the facility, the rule at issue was unlaw-
ful because it
requires employees to secure managerial approval, giving
managers absolute discretion to grant or deny access for any
reason, including to discriminate against or discourage Sec-
tion 7 activity. The judge therefore found that the rule ‘invites
reasonable employees to believe that Section 7 activity is pro-
hibited without prior management permission.’ Indeed, be-
cause all access is prohibited without permission, it does
more than merely invite that belief: it compels it. In turn, em-

sidered a different question: the application of an overly broad and
ambiguous limitations on otherwise permitted personal use of computer
systems.
ployees would reasonably conclude that they were required to
disclose to management the nature of the activity for which
they sought access—a compelled disclosure that would cer-
tainly tend to chill the exercise of Section 7 rights.
J. W. Marriott relies on the Board’s decision in Tri-County
Medical Center, 222 NLRB 1089 (1976), in which the Board
established that an employer’s rule barring offduty employees
from access to its facility is valid only if it:
(1) limits access solely with respect to the interior of the plant
and other working areas; (2) is clearly disseminated to all em-
ployees; and (3) applies to off duty employees seeking access
to the plant for any purpose and not just to those employees
engaging in union activity.
Tri-County enables an employer to ban completely offduty
employee access to the interior of its property. Similarly, Reg-
ister-Guard enables an employer to ban completely employee
nonwork of its email system. However, neither Tri-County nor
Register-Guard allows an employer to promulgate rules prohib-
iting access or use “just to those engaging in union activity.”
Tri-County, supra; Register-Guard, supra (violation to disci-
pline employee for using email where “only difference between
[the employee’s] email and the emails permitted by the Re-
spondent is that [the employee’s] email was union-related”).
And in neither situation may an employer maintain a rule that
permits use of its property, including for Section 7 purposes,
only when employees obtain approval from management.
In the instant case, as with access for offduty employees in
J. W. Marriott, a complete ban on employee email use would
not raise a legal issue. However, just as with the access rule in
J. W. Marriott, employees wanting to use email for Section 7
purposes are required to disclose this to and seek permission
from management. This chilling effect is unavoidable. Of
course, the problem is made even more acute by the fact that
employers have a right under 8(c) of the Act to communicate
their views (noncoercively) regarding unionization. Many
employers do not hide their views on unionization and their
view, whatever it is, could serve to chill employee willingness
to seek permission to solicit for the opposite view.7

7 At the hearing the Union indicated it was going to present a witness
for the purpose of authenticating and moving into evidence a large
number of documents purportedly maintained by Respondents on a
website available to employees, and which provided information that, I
think it is fair to say, was devoted to giving employees reasons not to
support the Union. We did not reach the point of authenticating the
documents with a witness, as I sustained Respondents’ objections to
introduction of these documents on relevancy grounds (that being the
occasion for my review of the documents). The documents were placed
in the Rejected Exhibit File, as CP Exhs. 1 and 2. On brief, the Union
has raised again the issue of the admissibility of the documents. Upon
consideration of the matter, I do agree that the documents are relevant
in one respect (and it is one of the rationales for admission specifically
advanced by the Union at the hearing). Evidence that Respondents
conveyed to employees that they opposed unionization is relevant to
consideration of whether a reasonable employee would be willing,
pursuant to the terms of the electronic mail and messaging policy, to
seek Respondent’s permission to solicit for prounion causes. The es-
tablishment by the employer (presumably in a completely lawful man-
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I find the electronic mail and messaging policy is overly
broad and ambiguous, in violation of Section 8(a)(1) of the Act.
3. Acceptable use of information technology
resources policy
The acceptable use of information technology resources pol-
icy begins by establishing a broad restriction on the use of Re-
spondents’ information technology for “business, clinical, re-
search, and educational activities of UPMC workforce mem-
bers.” This policy goes on to delineate a significant carve-out
to the broad prohibition: where a “UPMC technology resource
is assigned to an employee, the employee is permitted de
minimis personal use of the [resource].” The policy expressly
defines “de minimis personal use” as use of the resource “to the
extent that such use does not affect the employee’s job perfor-
mance [ ]or prevent[ ] other employees from performing their
job duties.”
The other part of the acceptable use policy challenged in the
complaint consists of the following “requirements” (excerpted
from a list of 25):
20. Without UPMC’s prior written consent, a UPMC work-
force member shall not independently establish (or otherwise
participate in) websites, social networks (such as face book,
MySpace, peer-to-peer networks, twitter, etc.) electronic bul-
letin boards or other web-based applications or tools that:
 Describe any affiliation with UPMC;
. . . .
 Disparage or Misrepresent UPMC;
 Make false or misleading statements regarding
UPMC;
. . . .
 Use UPMC’s logos or other copyrighted or trade-
marked materials (See UPMC Policy HS-PR1100
titles “Use of UPMC Name, Logo, and Tagline”).
. . . .
23. Sensitive, confidential, and highly confidential infor-
mation transferred over the Internet shall use appropriate se-
curity controls and have the written approval of UPMC’s
Chief Information Officer or Privacy Officer.
In terms of analyzing these provisions, Respondents argue
(R. Br. at 34) that read in context, this “policy is exclusively

ner) that it actively discourages and opposes unionization would dis-
courage employees from seeking permission to communicate for
prounion causes. I reverse my relevancy ruling on these grounds.
However, I am not admitting the documents because, due to my initial
ruling, authentication was not established. In addition, I do not believe
introduction of these documents are necessary to my findings and con-
clusions. As stated in the text, the right of the employer to advance its
position on Sec. 7 matters would likely chill employees seeking per-
mission to engage in contrary Sec. 7 solicitation. But should a review-
ing body agree with my relevance ruling and disagree with my view
that these documents are not decisive, the proper course will be a re-
mand order for the purpose of permitting the Union an opportunity to
authenticate the documents (through witness testimony or stipulation).
intended to govern communications that could reasonably be
construed as being made on behalf of Respondents.” They
further argue that the policy “only restricts employees’ use of
Respondents’ equipment and activities at work. The policy
does not (and could not reasonably be construed to) restrict
employees’ ability to use their own electronic resources while
offduty to engage in Section 7 activity.” Id.
As to Respondents’ latter contention, I agree. The introduc-
tory “policy” and “purpose” provisions render reasonably clear
that this policy concerns use of UPMC information technology
resources—not employees’ own computers and technology.
(See, “Purpose” . . . . To establish guidelines for . . . the ac-
ceptable use of UPMX information technology resources.”)
However, Respondents’ former claim—that the policy may
reasonably be read to govern only communications that could
be “construed as being made on behalf of Respondents”—does
not constitute a reasonable reading of the policy. That is cer-
tainly one concern of the policy. But the portion of the policy
that the General Counsel’s case takes issue with is the portion
governing “de minimis personal use” by employees. Almost by
definition, that is use of the computer systems that is not being
made by employees on behalf of Respondents.
Read in context—employees are allowed to use computers
for nonwork purposes to the extent it does not interfere with job
duties and, based on item 20, it appears that employees may use
these resources for social media communication that goes well
beyond communication with others using Respondents’ equip-
ment. By implication employees are permitted to use Respond-
ents’ equipment to participate in Facebook, MySpace, Twitter,
and other such sites, as long as the employees do not describe
any affiliation with UPMC, do not “disparage or misrepresent”
UPMC, make “false or misleading statements regarding
UPMC,” or use UPMC logos, “or other copyrighted or trade-
marked materials.” However, employees can make statements
and communications that fall within the scope of these restrict-
ed areas if written prior consent is obtained from UPMC.
Based on much the same reasoning set forth above regarding
the electronic mail and messaging policy, these overly broad
and vague restrictions on employee use of technology re-
sources, which employees can avoid if they seek and receive
permission from the employer, violate the Act. Thus, the pro-
hibition on statements that “[d]isparage or [m]isrepresent
UPMC” and the prohibition on “false or misleading statements
regarding UPMC” are very similar to the prohibition on posted
statements “that damage the Company, defame any individual
or damage any person’s reputation” that were found unlawfully
overbroad in Costco, supra.8 Nothing in Respondents’ rule

8 See also Southern Maryland Hospital, 293 NLRB 1209, 1222
(1989) (rule against “derogatory attacks on hospital representatives”
unlawful), enfd. in relevant part 916 F.2d 932, 940 (4th Cir. 1990) (“By
permitting the punishment of employees for speaking badly about hos-
pital personnel, the employer ‘failed to define the area of permissible
conduct in a manner clear to employees and thus cause[d] employees to
refrain from engaging in protected activities’” (quoting American Cast
Iron Pipe v. NLRB, 600 F.3d 132, 137 (8th Cir. 1979)); Claremont
Resort & Spa, 344 NLRB 832, 832 (2005) (“rule’s prohibition of
‘negative conversations’ about managers would reasonably be con-
strued by employees to bar them from discussing with their coworkers
UPMC 25
indicates that any protected activity is exempt from the rule,
and thus, facially, the rule chills Section 7 activity in the ab-
sence of a lawfully promulgated rule that draws lines in a non-
discriminatory way explaining which protected conduct is per-
mitted and which is not. Precisely as with the electronic mail
and messaging policy, in this policy the employer has “failed to
define the area of permissible conduct in a manner clear to
employees and thus caused employees to refrain from engaging
in protected activities.” American Cast Iron Pipe Co. v. NLRB,
600 F.2d 132, 137 (8th Cir. 1979). Employees confronting an
employer’s rule “should not have to decide at their own peril
what information is not lawfully subject to such a prohibition.”
Hyundai America Shipping Agency, 357 NLRB No. 80, slip op.
at 12 (2011), cited in DirectTV, 359 NLRB No. 54, slip op. at 3
(2013). Such ambiguity and over breadth is unlawful precisely
because it chills Section 7 activity—an employee will reasona-
bly avoid all Section 7 activity precisely out of concern that the
employer may apply the rule in a manner that impermissibly
singles out Section 7 activity. This is the very essence of the
problem that the Board precedent is designed to prevent.
The prohibition “on describing any affiliation with UPMC”
is reasonably read to prohibit employees (who, are using Face-
book Twitter, etc., which the employer’s rule permits) from
telling anyone where they work, a restriction that severely in-
hibits discussion with others about the terms and conditions and
pluses and minuses of their work experience. This unusual
prohibition would greatly chill Section 7-related discussion,
and perhaps nothing but Section 7-related discussion, without
any apparent nondiscriminatory boundary or distinction in a
rule that generally permits personal use of email to discuss
matters on social media sites. As in Costco, supra, slip op. at 2
fn. 6: “Here, the rule at issue does not prohibit using the elec-
tronic communications system for all non-job purposes, but
rather is reasonably understood to prohibit the expression of
certain protected viewpoints. In doing so, the rule serves to
inhibit certain kinds of Sec. 7 activity while permitting others
and, for this reason, violates Sec. 8(a)(1).”
The rule prohibits the use of UPMC logos (and other trade-
marked or copyrighted materials) by employees when they are
posting on social media sites. It is one thing to have a rule that
is narrowly tailored to prohibit trademark or copyright in-
fringement. But this sweeps much broader. Employees have a
Section 7 right to display a logo as part of their Section 7 com-
munications. There is no issue—or, more accurately, need not
be an issue—of trademark or copyright infringement. See
Pepsi-Cola Bottling Co., 301 NLRB 1008, 1019–1020 (1991),
enfd. 953 F.2d 638 (4th Cir. 1992) (employer policy prohibiting
employees from wearing uniforms with company logo while

complaints about their managers that affect working conditions, thereby
causing employees to refrain from engaging in protected activities.
Accordingly, the rule is unlawful”); Beverly Health & Rehabilitation
Services, 332 NLRB 347, 348, 356-357 (2000) (rule prohibiting “false
or misleading work-related statements concerning the company, the
facility, or fellow associates” is unlawful), enfd. 297 F.3d 468 (6th Cir.
2002); Knauz BMW, 358 NLRB No. 164, slip op. at 1 (2012) (“courte-
sy” rule prohibiting “disrespectful” conduct unlawful); Cincinnati
Suburban Press, 289 NLRB 966 fn. 2, 975 (1988) (rule prohibiting
false statements unlawful).
engaging in union activity is unlawful infringement of Section
7 rights of employees in absence of legitimate business justifi-
cation). A rule that permits widespread use of social media by
employees for nonwork purposes but bars use of logos is a
prohibition of the expression of “certain protected viewpoints
that inhibits certain kinds of Sec. 7 activity while permitting
others and, for this reason, violates Section 8(a)(1).” Costco,
supra.
Moreover, the acceptable use of information technology re-
sources policy makes clear that all of the above limitations—on
disparaging, misrepresenting, making false or misleading
statements, or using UPMC logos—can be engaged in by em-
ployees if they receive prior written permission from UPMC to
do so. This requirement that employees request and receive
permission in order to find out if Section 7 activity will be per-
mitted is antithetical to the Act. See J. W. Marriott, 359 NLRB
No. 8 (2012), discussed above (managers’ absolute discretion
over application of rule is unlawful because it requires man-
agement permission to engage in Section 7 activity and leads
employees to reasonably conclude that they are required to
disclose to management the nature of the activity for which
they seek permission, a compelled disclosure that would cer-
tainly tend to chill the exercise of Section 7 rights).
Finally, the acceptable use of information technology re-
sources policy requires employees using the internet to have
“the written approval of UPMC’s Chief Information Officer or
Privacy Officer” before transferring “[s]ensitive, confidential,
and highly confidential information” over the internet. This
will reasonably chill protected employee discussion such as on
wages, personnel matters, benefits and other terms and condi-
tions of employment,9 and the conclusion is unavoidable here,
as record evidence suggests that (in other employment rules)
Respondents define “confidential information” to include
“Compensation Data,” “Benefits Data,” “Staff Member (Co-
Worker) Data,” and “Policies and Procedures.”10 Thus, a rea-

9 Flamingo Hilton-Laughlin, 330 NLRB 287, 288 fn. 3, 291–292
(1999) (rule prohibiting employees from revealing confidential infor-
mation regarding customers, fellow employees, or hotel business, un-
lawful); Albertson’s, Inc., 351 NLRB 254 (2007) (employer unlawfully
used its confidentiality rule to discipline an employee for engaging in
protected concerted activity, namely, providing employee names to
assist the union’s organizing campaign).
10 The December 13, 2012 consolidated complaint alleged that the
Respondents maintained a “Confidential Information Policy” which
provided as “examples of confidential information” “Compensation
Data,” “Benefits Data,” “Staff Member (Co-Worker) Data,” and “Poli-
cies and Procedures.” Respondents’ answers neither admitted nor
denied these allegations, stating instead that the “Confidential Infor-
mation Policy is a document that speaks for itself” and then denying
“all allegations . . . that are inconsistent with the document.” This
nonanswer constitutes an admission under Board Rules. See Sec.
102.20. I note that documents, in fact, do not speak for themselves.
Lane v. Page, 272 F.R.D. 581 602-603 (D. NM 2011); State Farm
Mutual Auto Insurance v. Riley, 199 F.R.D. 276 (N.D. Ill. 2001) (app.
p. 2). See also Chicago District Council of Carpenters Pension Fund v.
Balmoral Racing Club, Inc., 2000 U.S. Dist. LEXIS 11488, 2000 WL
876921 (N.D. Ill 2000) (Judge Shadur) (“[Defendant] goes on in each
of those paragraphs to state that it denies all of the corresponding Com-
plaint allegations that are “inconsistent therewith.” But how are [Plain-
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sonable employee will conclude that the rule permits a wide-
range of internet discussion, but excludes this particular and
important type of Section 7 communication. This kind of
viewpoint discrimination, based not on neutral drawing of lines
but on the reasonable believe that core Section 7 topics have
simply been excluded from discussion, is not permitted. Cost-
co, supra. And as discussed, above, the problem is compound-
ed by the rule’s recitation that this “confidential” information
may be transferred with the “approval” of a designated UPMC
official. J. W. Marriott, supra.
For all of the above reasons, I find that the maintenance and
promulgation of the acceptable use of information technology
resources policy violates Section 8(a)(1) of the Act.11

tiffs’] counsel or this Court expected to divine just what provisions of
the Complaint’s allegations regarding the operative documents may be
viewed as “inconsistent therewith” by [Defendant] and its counsel? . . .
No reason appears why [Defendant] should not respond by admitting
any allegation that accurately describes the content of whatever part of
a document is referred to”).
11 Most of Respondents’ brief (and much of the General Counsel’s
and the Union’s briefs as well) is devoted to arguments regarding the
propriety of Register-Guard. As noted, these arguments on which the
Board must rule. I am bound to accept the Register-Guard precedent.
Respondents raise a few other defenses that warrant only brief men-
tion. Respondents contend (R. Br. at 19–21) that allowing employees
to use the email system for Sec. 7 purposes would constitute unlawful
support by Respondents for union organizing. This argument turns
precedent on its head. It suggests that permitting employee use of the
email system for all purposes except Sec. 7 purposes would be accepta-
ble, and indeed, that even when an employer permits free and unfet-
tered use of email by employees it is prohibited from permitting email
to be used for Sec. 7 purposes. Such an argument is without precedent
and directly contrary to the Board’s holding in Register-Guard. As
long as employees can use email without regard to their views on un-
ionization, there can be no serious claim that Respondents are suscepti-
ble to a claim of unlawful support for allowing Sec. 7 activity on their
email system. Similarly, Respondents contention (R. Br. at 21–22)
employee email usage to support unions would violate the right of
employees to refrain from union activity is a straw man. No party
suggests that prounion employees should be able to use the email sys-
tem to voice their opinions while antiunion employees are prohibited
from doing so. Such a policy would violate the Act under Register-
Guard and under first principles of the Act. Respondents’ contention
that the hospital setting warrants unique restrictions on use of electronic
communications for Sec. 7 purposes is misplaced. Under Register-
Guard, Respondents are under no requirement to permit any nonwork
employee use of email. But when they do, their discretion to bar Sec. 7
activity, or only Sec. 7 activity, is not unfettered. Respondents make no
case why nonwork non-Sec. 7 activity is less distracting in a hospital
setting than Sec. 7-related use of electronic communications.
Respondents also (R. Br. at 30) argue, citing Noel Canning v. NLRB,
705 F.3d 490 (D.C. Cir. 2013), that the Board cannot decide this case
because it lacks a quorum due to the allegedly unconstitutional recess
appointment of two of the three current Board members. The Board
rejected this argument in Center for Social Change, 358 NLRB No. 24
(2012), enfd. D.C. Cir. 2012 U.S. App. LEXIS 25150 (2012). Moreo-
ver, it has rejected the argument in the wake of the decision in Noel
Canning. See Orni 8, LLC, 359 NLRB No. 87, slip op. 1 at fn. 1
(2013).
Finally, Respondents assert in their answers that “the Board’s Acting
General Counsel was improperly and unlawfully appointed and cannot
lawfully take any action in this matter.” No support for this contention
UPMC’s Motion for Judgment on the Pleadings and
UPMC’s Consent to be Bound for Purposes of Certain
Remedial Relief
UPMC filed a document entitled “Motion for Judgment on
the Pleadings,” stamped received by the NLRB Order Section
of the Board’s Executive Secretary on February 20, 2013, at
12:19 p.m.
The motion seeks dismissal of UPMC “as a respondent in the
case” on the grounds that the complaint “does not allege that
UPMC engaged in any unfair labor practices” and that the
Government “has failed to state a claim upon which relief can
be granted.”
Review of the complaint makes one thing clear: the com-
plaint states no cause against UPMC. The complaint does not
allege that UPMC engaged in any unfair labor practices. It
does not seek a remedy against UPMC. Indeed, contrary to
UPMC’s representation in the motion, the complaint does not
identify UPMC as a respondent. The previous iterations of the
complaint did name UPMC as a respondent. (see, e.g., Amend-
ed Consolidated Complaint dated January 8, 2013; GC Exh.
1(y); Consolidated Complaint (GC Exh. 1(s)). With nothing
more, UPMC’s motion could be denied—as moot and unneces-
sary.
However, UPMC is not unconnected to the case. As refer-
enced above, this case, along with several other cases originally
comprised scores of alleged violations of the Act by Respond-
ents, including UPMC, the parent entity that owns Respondent
Presbyterian Shadyside and Respondent Magee. A settlement
agreement between Respondents (at that time including
UPMC) and the Union, approved by the Regional Director,
resolved most of the outstanding allegations prior to issuance of
the second amended complaint that was the subject of the hear-
ing in this case.
The earlier complaints in this case all alleged that UPMC
was a single employer with the subsidiary hospital respondents.
UPMC denied the single-employer allegations (and denied the
allegations of substantive misconduct). The pretrial settlement
included a written stipulation, entered into evidence in the hear-
ing in this case as Joint Exhibit 1, and represented without ob-
jection to be “a resolution of the . . . single employer issue.”
This document stipulated that “[t]he Respondent”—which
included UPMC—would expunge any policies found to be
unlawful “wherever they exist on a systemwide basis at any and
all of Respondent’s facilities” and that the Respondent will
“notify all of its employees at all of Respondent’s facilities
within the United States and its territories where such policies
were in existence . . . that such policies have been rescinded
and will no longer be enforced.”

is provided. Acting General Counsel Lafe Solomon was appointed to
his office on June 21, 2010, pursuant to Sec. 3(d) of the Act, which
provides: “In case of vacancy in the office of the General Counsel the
President is authorized to designate the officer or employee who shall
act as General Counsel during such vacancy . . . .” Notably, Respond-
ents do not argue that the Acting General Counsel’s lawful appointment
lapsed, but only that his appointment was improper and unlawful. I
reject the contention for which Respondents provide no support.
UPMC 27
While the extant second amended complaint maintains no al-
legations of wrongdoing against UPMC, nevertheless UPMC
was served with the second amended complaint, filed objec-
tions and an answer to the second amended complaint, and
UPMC’s counsel who filed the answer and objection appeared
at the hearing (they also represent the subsidiary respondents).
The stipulation was entered into evidence without objection in
their presence. Moreover, Respondents’ posthearing brief was
filed on behalf of UPMC, as well as Presbyterian Shadyside
and Magee. (R. Br. at 1.) Thus, UPMC has been fully apprised
of and involved in this case, despite the lack of substantive
claims against it in the second amended complaint. There is no
due process problem (and none alleged) with holding UPMC
liable for remedial purposes to the extent UPMC consented to
be bound by a remedial order, as set forth in Joint Exhibit 1.
The upshot of all of this is—that while I agree with UPMC
that no cause of action is stated against it in the complaint,
UPMC has agreed to be bound for certain stipulated remedial
purposes, and was and is a party for purposes of remedial relief,
akin to a rule 19 defendant in Federal court. This serves not
only to empower the Board to issue remedial relief affecting
UPMC, but permits UPMC to protect its interests. I deny the
motion for judgment on the pleadings on these grounds.12
CONCLUSIONS OF LAW
1. Respondent UPMC Presbyterian Shadyside and Respond-
ent Magee-Womens Hospital of UPMC are employers within
the meaning of Section 2(2), (6), and (7) of the Act, and health
care institutions within the meaning of Section 2(14) of the Act.
2. Since about February 1, 2012, Respondents have violated
Section 8(a)(1) of the Act by their maintenance of the electron-
ic mail and messaging policy and the acceptable use of infor-
mation technology resources policy.
3. The unfair labor practices committed by Respondents af-
fect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that Respondents have engaged in certain un-
fair labor practices, I find that they must be ordered to cease
and desist there from and to take certain affirmative action
designed to effectuate the policies of the Act.
Respondents shall further be ordered to refrain from in any
like or related manner abridging any of the rights guaranteed to
employees by Section 7 of the Act.
Within 14 days, Respondents shall rescind the personnel and
human resources policy entitled “Electronic Mail and Messag-
ing Policy,” and the policy entitled “Acceptable Use of Infor-
mation Technology Resources Policy,” maintained on the
UPMC Infonet.
As part of the remedy in this case, Respondents shall post an
appropriate informational notice, as described in the attached
appendix. This notice shall be posted in all Respondents’ fa-
cilities or wherever the notices to employees are regularly post-

12 The General Counsel and the Union argue (GC Br. at 29–30; CP
Br. at 29) that the motion was untimely. The General Counsel also
argues that the motion was not properly served (GC Br. at 30). I do not
reach those arguments in light of my denial of the motion.
ed for 60 days without anything covering it up or defacing its
contents. In addition to physical posting of paper notices, no-
tices shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other electronic
means, if Respondents customarily communicate with their
employees by such means. In the event that, during the pen-
dency of these proceedings, Respondents have gone out of
business or closed a facility involved in these proceedings,
Respondents shall duplicate and mail, at their own expense, a
copy of the notice to all current employees and former employ-
ees employed by Respondents at any time since February 1,
2012. When the notice is issued to Respondents, they shall sign
it or otherwise notify Region 6 of the Board what action they
will take with respect to this decision.
In Joint Exhibit 1, Respondents, and UPMC stipulated to the
following:
The undersigned parties hereby stipulate that any poli-
cies either adjudicated as unlawful, or which Respondent
agrees to voluntarily rescind in connection with the instant
matter, will be expunged wherever they exist on a
systemwide basis at any and all of Respondent’s facilities
within the United States and its territories, including, but
not limited to, those which are operated by UPMC Presby-
terian Shadyside and Magee-Womens Hospital of UPMC.
Moreover, Respondent agrees that it will notify all of
its employees at all of Respondent’s facilities within the
United States and its territories where such policies were
in existence, including, but not limited to, those employees
working in facilities which are operated by UPMC Presby-
terian Shadyside and Magee-Womens Hospital of UPMC,
that such policies have been rescinded and will no longer
be enforced. Appropriate notice to employees of the re-
scission will be accomplished by whatever means Re-
spondent has traditionally used to announce similar policy
changes to employees in other circumstances.
Presbyterian Shadyside, Magee, and UPMC shall comply
with the terms of this stipulation.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended13
ORDER
Respondents UPMC Presbyterian Shadyside and Magee-
Womens Hospital of UPMC, Pittsburgh, Pennsylvania, their
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining a personnel and human re-
sources policy such as that entitled the “Electronic Mail and
Messaging Policy,” including on the UPMC Infonet, that con-
tains the following language:
UPMC electronic messaging systems may not be used:

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
 To promote illegal activity or used in a way that
may be disruptive, offensive to others, or harmful
to morale; or
 To solicit employees to support any group or or-
ganization, unless sanctioned by UPMC executive
management;
 In a manner inconsistent with UPMC policies and
directives, including, but not limited to policies
concerning commercial communication, solicita-
tion, sexual harassment, job performance and ap-
propriate Internet use.
(b) Promulgating and maintaining a personnel and human re-
sources policy such as that entitled the “Acceptable Use of
Information Technology Resources Policy,” including on the
UPMC Infonet, that contains the following language:
UPMC workforce members shall only use UPMC infor-
mation technology resources for authorized activities. Author-
ized activities are related to assigned job responsibilities and
approved by the appropriate UPMC management. To the ex-
tent that a UPMC information technology resource is assigned
to an employee, the employee is permitted de minimis per-
sonal use of the UPMC information technology resource.
“De minimis personal use” is defined as use of the infor-
mation technology resource only to the extent that such use
does not affect the employee’s job performance nor prevents
other employees from performing their job duties.
. . . .
20. Without UPMC’s prior written consent, a UPMC work-
force member shall not independently establish (or otherwise
participate in) websites, social networks (such as face book,
MySpace, peer-to-peer networks, twitter, etc.) electronic bul-
letin boards or other web-based applications or tools that:
 Describe any affiliation with UPMC;
. . . .
 Disparage or Misrepresent UPMC;
 Make false or misleading statements regarding
UPMC;
. . . .
 Use UPMC’s logos or other copyrighted or trade-
marked materials (See UPMC Policy HS-PR1100
titles “Use of UPMC Name, Logo, and Tagline”).
. . . .
23. Sensitive, confidential, and highly confidential infor-
mation transferred over the Internet shall use appropriate se-
curity controls and have the written approval of UPMC’s
Chief Information Officer or Privacy Officer.
(c) 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) Within 14 days, rescind the personnel and human re-
sources policy entitled “Electronic Mail and Messaging Poli-
cy,” maintained on the UPMC Infonet that contains the follow-
ing language:
UPMC electronic messaging systems may not be used:
 To promote illegal activity or used in a way that
may be disruptive, offensive to others, or harmful
to morale; or
 To solicit employees to support any group or or-
ganization, unless sanctioned by UPMC executive
management;
 In a manner inconsistent with UPMC policies and
directives, including, but not limited to policies
concerning commercial communication, solicita-
tion, sexual harassment, job performance and ap-
propriate Internet use.
(b)Within 14 days, rescind the personnel and human re-
sources policy entitled “Acceptable Use of Information Tech-
nology Resources Policy,” maintained on the UPMC Infonet
that contains the following language:
UPMC workforce members shall only use UPMC infor-
mation technology resources for authorized activities. Author-
ized activities are related to assigned job responsibilities and
approved by the appropriate UPMC management. To the ex-
tent that a UPMC information technology resource is assigned
to an employee, the employee is permitted de minimis per-
sonal use of the UPMC information technology resource.
“De minimis personal use” is defined as use of the infor-
mation technology resource only to the extent that such use
does not affect the employee’s job performance nor prevents
other employees from performing their job duties.
. . . .
20. Without UPMC’s prior written consent, a UPMC work-
force member shall not independently establish (or otherwise
participate in) websites, social networks (such as face book,
MySpace, peer-to-peer networks, twitter, etc.) electronic bul-
letin boards or other web-based applications or tools that:
 Describe any affiliation with UPMC;
. . . .
 Disparage or Misrepresent UPMC;
 Make false or misleading statements regarding
UPMC;
. . . .
 Use UPMC’s logos or other copyrighted or trade-
marked materials (See UPMC Policy HS-PR1100
titles “Use of UPMC Name, Logo, and Tagline”).
. . . .
23. Sensitive, confidential, and highly confidential infor-
mation transferred over the Internet shall use appropriate se-
UPMC 29
curity controls and have the written approval of UPMC’s
Chief Information Officer or Privacy Officer.
(c) Within 14 days after service by the Region, post at all
their facilities nationwide the attached notice marked “Appen-
dix.”14 Copies of the notice, on forms provided by the Regional
Director for Region 6, after being signed by Respondents’ au-
thorized representative, shall be posted by Respondents and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. In addition to the physical posting of paper notices,
notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if Respondents customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken by
Respondents 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, Respondents have gone out of
business or closed any facility involved in these proceedings,
Respondents shall duplicate and mail, at their own expense, a
copy of the notice to all current employees and former employ-
ees employed by Respondents at any time since February 1,
2012.
(d) 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
Respondents have taken to comply.
As further remedy for the violations found in this case,
UPMC, Respondents UPMC Presbyterian Shadyside, and
Magee-Womens Hospital of UPMC, Pittsburgh, Pennsylvania,
their officers, agents, successors, and assigns, shall, in accord-
ance with the stipulation (Joint Exhibit 1) signed by all parties:
1. Take the following affirmative action which has
been agreed to pursuant to the stipulation signed by
the parties, and is necessary to effectuate the pur-
poses of the Act:
a. Expunge the Electronic Mail and Messaging Policy
and the Acceptable Use of Information Technology
Resources Policy wherever they exist on a
systemwide basis at any and all of UPMC, Presby-
terian Shadyside, and Magee’s facilities within the
United States and its territories.
b. Notify all of their employees at all of their facilities
within the United States and its territories where the
Electronic Mail and Messaging Policy and the Ac-
ceptable Use of Information Technology Resources
Policy were in existence, that such policies have
been rescinded and will no longer be enforced.
Appropriate notice to employees of the rescission
will be accomplished by whatever means UPMC,
Presbyterian Shadyside, and Magee have tradition-

14 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.”
ally used to announce similar policy changes to
employees in other circumstances.
Dated, Washington, D.C. April 19, 2013.
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a 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 promulgate and maintain a personnel and hu-
man resources policy such as that entitled the “Electronic Mail
and Messaging Policy,” including on the UPMC Infonet, that
contains the following language:
UPMC electronic messaging systems may not be used:
 To promote illegal activity or used in a way that
may be disruptive, offensive to others, or harmful
to morale; or
 To solicit employees to support any group or or-
ganization, unless sanctioned by UPMC executive
management;
 In a manner inconsistent with UPMC policies and
directives, including, but not limited to policies
concerning commercial communication, solicita-
tion, sexual harassment, job performance and ap-
propriate Internet use.
WE WILL NOT promulgate and maintain a personnel and hu-
man resources policy such as that entitled the “Acceptable Use
of Information Technology Resources Policy,” including on the
UPMC Infonet that contains the following language:
UPMC workforce members shall only use UPMC infor-
mation technology resources for authorized activities. Author-
ized activities are related to assigned job responsibilities and
approved by the appropriate UPMC management. To the ex-
tent that a UPMC information technology resource is assigned
to an employee, the employee is permitted de minimis per-
sonal use of the UPMC information technology resource.
“De minimis personal use” is defined as use of the infor-
mation technology resource only to the extent that such use
does not affect the employee’s job performance nor prevents
other employees from performing their job duties.
. . . .
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20. Without UPMC’s prior written consent, a UPMC work-
force member shall not independently establish (or otherwise
participate in) websites, social networks (such as face book,
MySpace, peer-to-peer networks, twitter, etc.) electronic bul-
letin boards or other web-based applications or tools that:
 Describe any affiliation with UPMC;
. . . .
 Disparage or Misrepresent UPMC;
 Make false or misleading statements regarding
UPMC;
. . . .
 Use UPMC’s logos or other copyrighted or trade-
marked materials (See UPMC Policy HS-PR1100
titles “Use of UPMC Name, Logo, and Tagline”).
. . . .
23. Sensitive, confidential, and highly confidential infor-
mation transferred over the Internet shall use appropriate se-
curity controls and have the written approval of UPMC’s
Chief Information Officer or Privacy Officer.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of rights guaranteed you by
Section 7 of the Act.
WE WILL within 14 days rescind the rescind the personnel
and human resources policy entitled “Electronic Mail and Mes-
saging Policy” maintained on the UPMC Infonet that contains
the language set forth above.
WE WILL within 14 days rescind the rescind the personnel
and human resources policy entitled “Acceptable Use of Infor-
mation Technology Resources Policy,” maintained on the
UPMC Infonet that contains the language set forth above.
WE WILL, along with UPMC, expunge the Electronic Mail
and Messaging Policy and the Acceptable Use of Information
Technology Resources Policy wherever they exist on a
systemwide basis at any and all of UPMC, Presbyterian
Shadyside, and Magee’s facilities within the United States and
its territories.
WE WILL, along with UPMC, notify all employees at all of
our facilities within the United States and its territories where
the Electronic Mail and Messaging Policy and the Acceptable
Use of Information Technology Resources Policy were in ex-
istence, that such policies have been rescinded and will no
longer be enforced.
UPMC PRESBYTERIAN SHADYSIDE AND MAGEE-
WOMENS HOSPITAL OF UPMC