William Beaumont Hospital

National Labor Relations Board - Board Decisions

Apr 13, 2016

363 NLRB No. 162 (N.L.R.B. 2016)

363 NLRB No. 162
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.
William Beaumont Hospital and Jeri Antilla. Case
07–CA–093885
April 13, 2016
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
On January 30, 2014, Administrative Law Judge Susan
A. Flynn issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Re-
spondent filed an answering brief, and the General Coun-
sel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,1 and conclusions2 as

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We correct the judge’s inadvertent finding that “the union” was a la-
bor organization within the meaning of Sec. 2(5) of the Act. There is no
union involved here.
The Respondent has not excepted to the judge’s finding that it vio-
lated Sec. 8(a)(1) of the Act by instructing employee Deanna Brandt
not to discuss with other employees the Respondent’s investigation into
her alleged misconduct. Accordingly, we do not pass on the judge’s
rationale, which included discussion of Banner Estrella Medical Cen-
ter, 358 NLRB 809 (2012), a case decided by a panel that included
invalidly appointed Board Members. See NLRB v. Noel Canning, 134
S. Ct. 2550 (2014).
2 We affirm the judge’s finding that the Respondent lawfully dis-
charged employees Jeri Antilla and Deanna Brandt. However, in agree-
ing with the judge that the General Counsel carried his initial burden
under Wright Line, 251 NLRB 1083, 1089 (1980), enfd. on other
grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), we find that Antilla and Brandt engaged in protected concerted
activity by complaining about staffing and safety, and we observe that
their termination notices cite some of their protected activity. We
nevertheless agree with the judge’s finding that the Respondent estab-
lished that it would have discharged Antilla and Brandt even in the
absence of their protected activity.
In finding that the Respondent met its Wright Line rebuttal burden,
we rely on evidence of the discharged employees’ unprotected intimi-
dating behavior, not on evidence that the Respondent maintained mech-
anisms for employees to report their safety concerns. Contrary to the
Respondent, we do not rely on the evidence concerning discipline met-
ed out to other employees after the alleged unfair labor practices.
When assessing the consistency of an employer’s disciplinary practices,
discipline that preceded the incident is a more reliable indicator.
modified below, and to adopt the recommended Order as
modified and set forth in full below.3
I.
The complaint alleges that the Respondent’s “Code of
Conduct for Surgical Services and Perianesthesia,” as
maintained and distributed to employees, was unlawful
in its entirety. The Code reads in relevant part:
It is the intention of Beaumont Hospitals to foster
effective working relationships among all hospital
employees and physicians in order to provide and
maintain high quality and safe patient care. Such re-
lationships must be based upon mutual respect to
avoid disruption of patient care or to hospital opera-
tions.
It is the expectation of hospital management that
employees and physicians promote and maintain a
professional environment in which all individuals
are treated with dignity and respect.
Conduct on the part of a Beaumont employee or
physician that is inappropriate or detrimental to pa-
tient care of [sic] Hospital operation or that impedes
harmonious interactions and relationships will not be
tolerated. Transgressors shall be subject to appropri-
ate remedial or corrective action.
Improper conduct or inappropriate behavior or
defiance in the following example [sic], which in-
cludes but not limited [sic] to the following:
4
[1.] Willful and intentional threats, intimidation,
harassment, humiliation, or coercion of employees,
physicians, patients, or visitors.
[2.] Profane and abusive language directed at
employees, physicians, patients or visitors.
[3.] Behavior that is rude, condescending or oth-
erwise socially unacceptable. Intentional misrepre-
sentation of information.
[4.] Verbal comments or physical gestures di-
rected at others that exceed the bounds of fair criti-
cism.
. . . .
[5.] Negative or disparaging comments about the
moral character or professional capabilities of an
employee or physician made to employees, physi-
cians, patients, or visitors.

3 We shall modify the judge’s recommended Order to conform to
the violations found and the Board’s standard remedial language. We
shall substitute a new notice to conform to the Order as modified and in
accordance with Durham School Services, 360 NLRB No. 85 (2014).
4 In the original document, the numbered items are presented as bul-
let points. We have added the numbers to facilitate our discussion.
The ellipses indicate bullet points that we have omitted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
. . .
[6.] Behavior that is disruptive to maintaining a
safe and healing environment or that is counter to
promoting teamwork.
Where, as here, a rule does not explicitly restrict ac-
tivities protected by Section 7, the rule is nevertheless
unlawful if (1) employees would reasonably construe the
language to prohibit Section 7 activity; (2) the rule was
promulgated in response to Section 7 activity; or (3) the
rule has been applied to restrict the exercise of such ac-
tivity. Lutheran Heritage Village-Livonia, 343 NLRB
646–647 (2004). Only the first prong of this test is at
issue here.
II.
For the reasons stated by the judge, we affirm her find-
ings that paragraphs 1, 2, and 3, as well as part 1 of para-
graph 6 (“Behavior that is disruptive to maintaining a
safe and healing environment”), of the Code are lawful.
5

And, in the absence of exceptions, we adopt the judge’s
finding that paragraph 4 and part 2 of paragraph 6 (“be-
havior that is. . . counter to promoting teamwork”) are
unlawful. Unlike the judge, however, we find two addi-
tional portions of the Code to be unlawful.
First, in agreement with the General Counsel, we find
the language in the introductory paragraph prohibiting
conduct that “impedes harmonious interactions and rela-
tionships” to be unlawfully overbroad. In 2 Sisters Food
Group, 357 NLRB 1816, 1817 (2011), we found unlaw-
ful an employer rule subjecting employees to discipline
for the “inability or unwillingness to work harmoniously
with other employees.” Like the rule there, the Re-
spondent’s prohibition is “sufficiently imprecise that it
could encompass any disagreement or conflict among
employees, including those related to discussions and
interactions protected by Section 7, and [] employees
would reasonably construe the rule to prohibit such activ-
ity.” Id. (citation omitted).6
Second, we find paragraph 5 unlawful insofar as it
prohibits “negative or disparaging comments about the
. . . professional capabilities of an employee or physician
to employees, physicians, patients, or visitors.” This rule
is unlawful because it would reasonably be construed to

5 Although the General Counsel contends generally that all of the
provisions in the Code are unlawful, he does not specifically except to
the judge’s finding regarding part 1 of par. 6.
6 The same unlawfully overbroad language in the Code’s introduc-
tory paragraph prohibiting conduct that “impedes harmonious interac-
tions and relationships” was used in both Antilla’s and Brandt’s termi-
nation forms. The General Counsel, however, does not contend that the
discharges were unlawful because of the reference to the invalid rules.
Accordingly, we do not analyze the discharges under Continental
Group, 357 NLRB 409 (2011).
prohibit expressions of concerns over working conditions
similar to those that we have found protected in this
case.7
These conclusions are firmly grounded in the well-
established principles that were articulated more than a
decade ago in Lutheran Heritage Village and that (as we
will explain) have been applied without question by Fed-
eral courts of appeals. The practical impact of our deci-
sion today is modest--an order requiring modification of
a few provisions of an extensive employer handbook, the
vast majority of which was either unchallenged or up-
held. In short, this case is (or at least should be) a rela-
tively unremarkable application of well-established law
to uncontroverted fact.
III.
Our dissenting colleague argues, in passing, that we
have reached the wrong result under Lutheran Heritage
Village.8 The dissent’s primary argument, however, is
that the Board should break with its current approach,
although no party in this case has asked us to do so. Our
colleague finds the decision today to be “a tragic exam-
ple of the problems fostered by the Lutheran Heritage
[Village] standard”—which, he suggests, has left em-
ployers afraid of articulating work rules (to the detriment
of employees, patient safety, and a wide range of legiti-
mate employer interests). He then proposes a new stand-

7 See, e.g., Claremont Resort & Spa, 344 NLRB 832, 832 fn. 4
(2005) (finding unlawful a rule prohibiting “[n]egative conversations
about [employees] and/or managers”).
We do not, however, find par. 5’s prohibition on impugning em-
ployees’ or physicians’ “moral character” to be unlawful, as it would
not reasonably be interpreted as prohibiting protected conversations.
8 In our colleague’s view, the rules are lawful under Lutheran Her-
itage Village because the Respondent’s employees necessarily would
understand that the rules were intended to promote patient care “with-
out regard to any employee’s potential exercise or non-exercise of
NLRA protected rights.” But, for the reasons we have suggested, the
rules have a reasonable tendency to chill the exercise of Sec. 7 rights.
That a rule is intended to promote patient care does not mean that it
is not overbroad, or that it cannot be applied—perhaps in the name of
patient care—to punish employees’ protected concerted activity. The
Supreme Court has made clear that a hospital rule adopted and defend-
ed in the interest of patient care may nevertheless violate the Act. See
Beth Israel Hospital v. NLRB, 437 U.S. 483, 496–497 (1978). See also
Presbyterian St. Luke’s Medical Center v. NLRB, 723 F.2d 1468, 1474
(10th Cir. 1983) (invalidating, as overbroad, hospital’s rule that includ-
ed statement that “any activity which is disruptive to the care of the
patient or atmosphere of patient care will not be tolerated”). Although
he minimizes the significance of the possibility, our colleague
acknowledges that “[a]t some future time, an employee might engage in
protected activity that could violate one of the rules in dispute here.”
Employees contemplating such activity—for example, pursuing a
workplace issue even though it “precipitated some interpersonal con-
flict” (in our colleague’s words) or “criticizing the ‘professional capa-
bilities’” of a physician or coworker” who affected working condi-
tions—might well be discouraged from doing so. The real possibility
of such a chilling effect suffices to make the rule overbroad.
WILLIAM BEAUMONT HOSPITAL 3
ard that would shift the focus of the Board’s inquiry
away from NLRA-protected rights and toward employer
interests. With respect, our colleague’s critique is mis-
placed—it misconstrues the underlying facts of this case
and the actual impact of our decision today. Moreover,
his suggested new approach would provide no greater
clarity in the law, and would potentially undermine the
essential protections of the Act. Accordingly, we have
no difficulty in deciding today to adhere to the Board’s
established standard for assessing facial challenges to
employer rules.
A.
We begin by rejecting the dissent’s opening premise
that there is a link between Board doctrine and the death
of a baby. Nothing we hold today, and nothing in the
Lutheran Heritage Village standard, has any connection
to the tragedy in the background of this case or to the risk
of similar incidents in the future. Indeed, our dissenting
colleague has chosen a particularly dubious case in
which to expound upon the supposedly paralyzing limita-
tions that Lutheran Heritage Village can impose on em-
ployers seeking to promulgate work rules targeting of-
fensive or unsafe workplace behavior. If anything, the
lesson of our decision today is just the opposite.
The Respondent’s “Code of Conduct for Surgical Ser-
vices and Perianesthesia” was adopted well before the
incident our colleague seizes on, not in response to it.
The Code, in other words, was firmly in place when the
incident occurred (and did not prevent it). Today’s deci-
sion, in turn, largely leaves the Code in place. The Gen-
eral Counsel did not challenge the Code’s statement of
“intention . . . to foster effective working relationships
among all employee and physicians,” its directive that
“[s]uch relationships must be based upon mutual respect
to avoid disruption of patient care or to hospital opera-
tions,” or its prohibition of “[c]onduct . . . that is inap-
propriate or detrimental to patient care o[r] Hospital op-
erations.” The Board, in turn, is upholding most of the
challenged provisions in the Code, including prohibitions
against (1) “[w]illful and intentional threats, intimidation,
harassment, humiliation, or coercion of employees, phy-
sicians, patients or visitors;” (2) “[p]rofane and abusive
language directed at employees, physicians, patients or
visitors;” (3) “[b]ehavior that is rude, condescending or
otherwise socially unacceptable;” (4) “[i]ntentional mis-
representation of information;” and (5) “[b]ehavior that is
disruptive to a safe and healing environment.”9

9 The Respondent has not challenged the judge’s finding that two
other Code provisions were unlawful: (1) the prohibition against
“[v]erbal comments or physical gestures directed at others that exceed
the bounds of fair criticism; and (2) the prohibition against “[b]ehavior
Moreover, the two hospital staff members whose dis-
charges are at issue here were not fired for violations of
the Code, and the Board is finding their discharges law-
ful. Nothing about today’s decision will change the hos-
pital’s ability to fire employees in the future for the type
of conduct in question. Indeed, even if the staff members
had been fired for violations of Code provisions that
were found unlawful, the discharges themselves might
nevertheless have been lawful under the Board’s 2011
decision in Continental Group, supra, which clarified the
approach to employer liability for discipline based on
unlawfully overbroad rules.10
In short, this case largely illustrates that Lutheran Her-
itage Village is no obstacle to a hospital employer seek-
ing to promote safe patient care by legitimately regulat-
ing employees’ on-the-job interactions.
B.
If this case is demonstrably not a “tragic example of
the problems fostered by the Lutheran Heritage [Village]
standard,” then it is far from clear why the Board should
revisit the standard here. As noted above, no party has
asked us to do so, and no Federal court of appeals has
rejected the standard in the 12 years during which the
Board regularly has applied it. Indeed, the courts have
applied Lutheran Heritage Village themselves, even
striking down certain employer rules that had been up-
held by the Board.11 We are not persuaded that, for more

. . . that is counter to promoting teamwork.” The legality of those Code
provisions thus is not before us.
10 Continental Group explained that the Board had “long adhered to
and applied the principle that discipline imposed pursuant to an unlaw-
fully overbroad rule is unlawful,” but that it was now “appropriate to
set limits on its application.” 357 NLRB 409, 410. Accordingly, the
Board held that:
[D]iscipline imposed pursuant to an unlawfully overbroad rule vio-
lates the Act in those situations in which an employee violated the rule
by (1) engaging in protected conduct or (2) engaging in conduct that
otherwise implicates the concerns underlying Section 7 of the Act.
Nevertheless, an employer will avoid liability . . . if it can establish
that the employee’s conduct actually interfered with the employee’s
own work or that of other employees or otherwise actually interfered
with the employer’s operations, and that the interference, rather than
violation of the rule, was the reason for the discipline.
357 NLRB 409, 412. Thus, “it is not unlawful for an employee to
discipline an employee pursuant to an overbroad rule, in situations
where the employee’s conduct is not similar to conduct protected by the
Act in the manner” explained in the decision. Id. See, e.g., Flex Frac
Logistics, LLC, 360 NLRB No. 120 (2014) (upholding discharge pursu-
ant to overbroad rule).
11 See, e.g., Flex Frac Logistics, LLC v. NLRB, 746 F.3d 205, 209
(5th Cir. 2014) (enforcing Board’s finding that rule was unlawful);
International Union, UAW v. NLRB, 520 F.3d 192, 197 (2d Cir. 2008)
(reversing Board’s finding that rule was lawful); Cintas Corp. v. NLRB,
482 F.3d 463, 467–470 (D.C. Cir. 2007) (enforcing Board’s finding
that rule was unlawful); Guardsmark, LLC v. NLRB, 475 F.3d 369,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
than a decade, the Board and the courts have been en-
gaged in an analytical exercise that is somehow contrary
to the Act and Supreme Court precedent. Nor do we
think that our colleague has offered a compelling alterna-
tive to the current standard: the test he proposes has a
weaker analytical foundation and would be more difficult
to apply. In this sometimes difficult area of labor law,
the Board should not take a step backward.
1.
The crux of the dissent is its claim—citing the Su-
preme Court’s Republic Aviation decision12—that the
Board must assess all employer rules by applying a bal-
ancing test that weighs employees’ particular Section 7
interests against the employer’s particular business justi-
fications. The First Circuit, however, has explained that
“[n]othing in Republic Aviation compel[s] the Board to
apply a balancing test” in cases like this one and that
“[w]hile the Board could have chosen to structure its rule
differently and engage in a balancing analysis, [the
courts] owe[] deference to its decision not to do so.” 13
The District of Columbia Circuit, meanwhile, has en-
dorsed the Board’s “focus[] on the text of the challenged
rule,” explaining that the Board is entitled to judicial
deference in its interpretation of Section 8(a)(1) when it
“’faithfully applies [its] standard and adequately explains
the basis for its conclusion.’”14

378–380 (D.C. Cir. 2007) (reversing Board’s finding that rule was
lawful).
12 Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945) (uphold-
ing Board’s finding that employer rules prohibiting solicitation and
distribution of literature were unlawful).
13 NLRB v. Northeastern Land Services, Ltd., 645 F.3d 475, 483 (1st
Cir. 2011). In Republic Aviation, the Supreme Court emphasized the
Board’s broad discretion to interpret and administer the National Labor
Relations Act:
[T]hat Act left to the Board the work of applying the Act’s generally
prohibitory language in the light of the infinite combination of events
which might be charged as violative of its terms. Thus a ‘rigid
scheme of remedies’ is avoided and administrative flexibility within
appropriate statutory limitations obtained to accomplish the dominant
purpose of the legislation. . . . [T]hat purpose is the right of employees
to organization for mutual aid without employer interference.
324 U.S. at 798. Our dissenting colleague argues that the First Cir-
cuit’s decision is incorrect, but we find his arguments unpersuasive for
the same reasons that we reject his general position here. As we have
pointed out, meanwhile, no Circuit has rejected Lutheran Heritage
Village since it was decided in 2004. Insofar as our colleague argues,
in the alternative, that the Board should adopt his position even if not
compelled to do so, we decline. Our colleague’s approach is not de-
monstrably superior to that reflected in current Board law.
14 Guardsmark, supra, 475 F.3d at 374. In Guardsmark, the District
of Columbia Circuit rejected the argument that the absence of evidence
of prior enforcement against Sec. 7 activity favored upholding an em-
ployer’s challenged rule. The court explained that in Aroostook County
Regional Ophthalmology Center v. NLRB, 81 F.3d 209 (D.C. Cir.
1996), and in Adtranz ABB Daimler-Benz Transportation v. NLRB, 253
More broadly, our colleague insists that Lutheran Her-
itage Village takes no account of the “legitimate justifi-
cations of particular policies, rules and handbook provi-
sions.” This claim reflects a fundamental misunderstand-
ing of the Board’s task in evaluating rules that are al-
leged to be unlawfully overbroad. As the Lutheran Her-
itage Village Board explained, quoting the Board’s 1998
decision in Lafayette Park Hotel, “to determine whether
the mere maintenance of certain work rules violates Sec-
tion 8(a)(1) of the Act, ‘the appropriate inquiry is wheth-
er the rules would reasonably tend to chill employees in
the exercise of their Section 7 rights.’”15 The courts, as
explained, have endorsed that proposition.16
That a particular rule threatens to have a chilling effect
does not mean, however, that an employer may not ad-
dress the subject matter of the rule and protect his legiti-
mate business interests. Where the Board finds a rule
unlawfully overbroad, the employer is free to adopt a
more narrowly tailored rule that does not infringe on
Section 7 rights. (The courts have recognized this
fact17—which surely explains why no court has viewed
Lutheran Heritage Village as our dissenting colleague
does.) When, in contrast, the Board finds that a rule is
not overbroad—that employees would not “reasonably
construe the language to prohibit Section 7 activity” (in
the Lutheran Heritage Village formulation)– it is typical-
ly because the rule is tailored such that the employer’s
legitimate business interest in maintaining the rule will
be sufficiently apparent to a reasonable employee.18
Here, too, the Lutheran Heritage Village standard de-
monstrably does take into account employer interests.
It is odd, meanwhile, that our colleague invokes a Dis-
trict of Columbia Circuit decision (Adtranz, supra) to
criticize the Lutheran Heritage Village standard even
though the Lutheran Heritage Village Board itself ex-
plicitly and repeatedly relied upon the court’s decision to

F.3d 19 (D.C. Cir. 2001), it had “discuss[ed] lack of enforcement,” but
“d[id] so only after first concluding that the challenged rules were not
likely to chill section 7 activity and that their mere maintenance was
thus not an unfair labor practice.” 475 F.3d at 375–376.
15 343 NLRB at 646, quoting Lafayette Park Hotel, 326 NLRB 824,
825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999).
16 See, e.g., Cintas Corp., supra, 482 F.3d at 467–468. See also
Double Eagle Hotel & Casino v. NLRB, 414 F.3d 1249, 1258–1259
(8th Cir. 2005) (quoting Lafayette Park Hotel, supra, with approval and
upholding principle that discharge pursuant to overbroad rule is unlaw-
ful).
17 See, e.g., Flex Frac, supra, 746 F.3d at 210 fn. 4; Northeastern
Land Services, 645 F.3d at 483; Cintas Corp., 482 F.3d at 378. Accord:
Beth Israel Hospital, supra, 437 U.S. at 502 (observing that in invali-
dating a hospital’s work rule, the “Board ha[d] not foreclosed the hospi-
tal from imposing less restrictive means of regulating organizational
activity more nearly directed toward the harm to be avoided”).
18 See, e.g., First Transit, Inc., 360 NLRB No. 72, slip op. at 2–3
(2014).
WILLIAM BEAUMONT HOSPITAL 5
find that a rule prohibiting “abusive language” was not
unlawful on its face.19 This paradox illustrates another
striking aspect of our colleague’s position here. He pre-
sents the Lutheran Heritage Village standard as overly–
indeed, impermissibly–protective of employees’ Section
7 rights when the Board’s decision actually gave greater
weight than prior decisions to employers’ interests. Lu-
theran Heritage Village, of course, was decided by a
divided Board in 2004, with the dissenting Board mem-
bers (Members Liebman and Walsh) arguing that the
majority had “[i]gnored the employees’ side of the bal-
ance” and had retreated from a broad application of the
principle announced in Lafayette Park Hotel.20 Academ-
ic commentators, too, saw Lutheran Heritage Village as
a retrenchment, not an expansion of Section 7 rights.21
Even so, one commentator argued that the decision re-
flected a permissible policy judgment by the Board, giv-
en its “discretion to set the level of appropriate protection
[of Section 7 rights] to weigh . . . legitimate employer
interests.”22 Our colleague takes the diametrically oppo-
site view of Lutheran Heritage Village—that it subordi-
nates employer interests to Section 7 rights and that it is
not a permissible policy choice by the Board. We reject
that view, for the reasons we have explained.
2.
Even if the dissent’s argument were simply that the
Board, while permitted to adopt the Lutheran Heritage
Village standard, should abandon it for a better approach,
our colleague has failed to articulate one. Whatever the
flaws in current law might be, the shortcomings in the
dissent’s standard are glaringly apparent.
Certainly, cases involving allegedly overbroad em-
ployer rules and implicating the Lutheran Heritage Vil-
lage standard may raise difficult issues, complicated, too,
by the need to harmonize the Board’s decisions over
time. But this challenge is not a function of the Board’s

19 Lutheran Heritage Village, supra, 343 NLRB at 647.
20 Id., at 650 (dissent).
21 See, e.g., Michael C. Harper, Judicial Control of the National La-
bor Relations Board’s Lawmaking in the Age of Chevron and Brand X,
89 Boston U. L. Rev. 189, 229–233 (2009); William R. Corbett, The
Narrowing of the National Labor Relations Act: Maintaining Work-
place Decorum and Avoiding Liability, 27 Berkeley J. Emp. & Lab. L.
23, 41–45 (2006). Professor Harper writes that Lutheran Heritage
Village “limited . . . the Board’s previous pronouncement in Lafayette
Park Hotel that an employer may commit a section 8(a)(1) violation by
maintaining a work rule that, although not explicitly directed at protect-
ed activity, might chill employees’ exercise of their section 7 rights.”
89 Boston U. L. Rev. at 230 (fn. omitted). In Professor Corbett’s view,
“[b]y accepting the D.C. Circuit’s Adtranz analysis, the Board majority
clearly diverged from its recent precedent analyzing employer rules
prohibiting workplace conduct and communications.” 27 Berkeley J.
Emp. & Lab. L. at 43.
22 Harper, supra, 89 Boston U. L. Rev. at 232.
legal standard. Rather, it is inherent in the remarkable
number, variety, and detail of employer work rules (and
the larger documents in which they appear), drafted with
differing degrees of skill and levels of legal sophistica-
tion.23 Already 30 years ago, one legal scholar described
the “bureaucratization of work” as having “enmeshe[d]
the worker in a ‘web of rules.’”24 This phenomenon,
whatever drives it, is largely out of the Board’s hands.
As the dissent acknowledges, “[n]othing in the [National
Labor Relations Act] requires employers to adopt poli-
cies, rules and handbook provisions.” Our colleague
insists, rather, that the “broader premise of Lutheran
Heritage . . . is the notion that employees are better
served by not having employment policies, rules and
handbooks [emphasis in original].” There is no basis in
Lutheran Heritage Village or its progeny for that claim.
What the decisions demonstrate is that employers who
adopt policies, rules and handbooks should take into ac-
count employees’ rights under the Act—as many em-
ployers surely do.25 This need is hardly new. Decades
before Lutheran Heritage Village, the Board had found
that particular employer rules violated the Act (as Repub-
lic Aviation, decided in 1945, indicates). Nor has the
Board’s jurisprudence, before or after Lutheran Heritage
Village, had any apparent effect on the adoption and
maintenance of employer rules as a general matter.
In place of the current standard, the dissent offers a
novel balancing test that would be harder to apply, while

23 Our dissenting colleague compares and contrasts the Board’s de-
cisions in various rules cases, arguing that the Lutheran Heritage Vil-
lage standard “has led to arbitrary results.” But each challenged rule
must be analyzed based on its own language and context, not by “read-
ing particular phrases in isolation,” Lutheran Heritage Village, supra,
343 NLRB at 646, or by purporting to see clear distinctions where none
exist. As the Supreme Court observed in a different context under the
Act, “[h]owever difficult the drawing of lines more nice than obvious,
the statute compels the task.” Electrical Workers Local 761 v. NLRB,
366 U.S. 667, 674 (1961). The dissent seems to imagine a “quick,
definitive formula as a comprehensive answer” to the problem of ana-
lyzing employer rules, but none is apparent to us. Id. Here, as in other
areas of labor law, the Board is obligated to bring its experience to bear
“on the complexities of the subject which is entrusted to [its] admin-
istration,” Republic Aviation, supra, 324 U.S. at 800, and to deal with
“an infinite variety of specific situations.” Phelps Dodge Corp. v.
NLRB, 313 U.S. 177, 194 (1941).
24 Matthew W. Finkin, The Bureaucratization of Work: Employer
Policies and Contract Law, 1986 Wis. L. Rev. 733, 742 (1986).
25 See generally Robert A. Gorman & Matthew W. Finkin, Labor
Law: Analysis and Advocacy §8.2 (2013) (offering “practice points” to
employers for drafting rules). To be sure, the Board does not affirma-
tively police employer rules. The Board’s procedures are set in motion
only if an unfair labor practice charge is filed by a private person and is
determined to have merit by the independent General Counsel. See
generally NLRB v. Food & Commercial Workers Local 23, 484 U.S.
112, 118–122 (1987) (describing Board procedures). It may be that
some employers doubt that their rules will ever be scrutinized by the
Board--and their judgment may be correct.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
tilted against Section 7 rights in a way that departs from
traditional jurisprudence under Section 8(a)(1) of the
Act. The Supreme Court’s decisions illustrate that
where employees’ Section 7 rights are implicated, and
the Board applies a balancing test, the issue is whether
there is a “countervailing [employer] interest that out-
weighs the exercise of [Section] 7 rights.”26 Indeed, the
District of Columbia Circuit has squarely placed on the
employer the “obligation to demonstrate its inability to
achieve [its] goal with a more narrowly tailored rule that
would not interfere with protected activity.”27 Our col-
league’s proposed test, in contrast, puts a clear thumb on
the scale to tilt the balance against Section 7 rights: “[A]
facially neutral work requirement should be declared
unlawful only if the justifications are outweighed by the
adverse impact [emphasis added] on Section 7 activity.”
We have already explained why the authority cited by
our colleague for this proposition (the District of Colum-
bia Circuit’s decision in Aroostook County Regional
Ophthalmology Center, supra) does not support his view
at all.
It seems highly unlikely, meanwhile, that application
of the dissent’s test would, in its words, “promote cer-
tainty, predictability and stability” in any desirable way.
Our colleague would have the Board “engage in a more
refined evaluation of [the] significant variables,” which
includes (1) “differentiat[ing] among different types of
NLRB-protected activity” and assessing the weight of
each; (2) “mak[ing] reasonable distinctions among the
justifications associated” with a challenged rule and giv-
ing them varying weight; (3) “mak[ing] reasonable dis-
tinctions between different industries and work settings;”
and (4) “tak[ing] into consideration any specific events
that might be relevant.” This “refined evaluation of the
significant variables” must be conducted, according to
our colleague, “[i]n the complex assortment of work set-
tings throughout the United States” which feature “a
near-endless variety of work requirements [that] exist for
important reasons.”
As a practical matter, the only way that certainty, pre-
dictability and stability might result from such a complex
exercise would be if adoption of the dissent’s test meant
that facial challenges to employer rules would rarely suc-
ceed. But to effectively limit the Act’s reach to the un-
lawful application of facially neutral rules would leave
the potential chilling effect of such rules on protected,
concerted activity unaddressed. That result is unaccepta-
ble if the Act is to be properly enforced.

26 Eastex, Inc. v. NLRB, 437 U.S. 556, 563 (1978).
27 Guardsmark, supra, 475 F.3d at 380.
For all of these reasons, we choose instead the option
of adhering to current law, consistent with the judicial
decisions applying and endorsing the Lutheran Heritage
Village standard.
ORDER
The National Labor Relations Board orders that the
Respondent, William Beaumont Hospital, Royal Oak,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining rules which employees would reason-
ably construe to discourage engaging in union or other
protected concerted activities, and specifically the fol-
lowing provisions of the Respondent’s Code of Conduct
for Surgical Services and Perianesthesia:
(i) The portion of the introductory paragraph
prohibiting conduct that “impedes harmonious inter-
actions and relationships” (both as maintained in the
Code and as applied on Performance Improvement
Plan forms);
(ii) the paragraph prohibiting “[v]erbal comments
or physical gestures directed at others that exceed
the bounds of fair criticism”;
(iii) the paragraph prohibiting “[n]egative or dis-
paraging comments about the professional capabili-
ties of an employee or physician made to employees,
physicians, patients, or visitors”; and
(iv) the prohibition on “[b]ehavior that is . . .
counter to promoting teamwork.”
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of 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 prohibitions set forth in paragraph 1(a),
above, or revise them to remove any language that pro-
hibits or may reasonably be read to prohibit conduct pro-
tected by Section 7 of the Act.
(b) Notify all current employees that those prohibitions
have been rescinded or, if they have been revised, pro-
vide them a copy of the revised rules.
(c) Within 14 days after service by the Region, post at
its facility in Royal Oak, Michigan, copies of the at-
tached notice marked “Appendix.”28 Copies of the notice,
on forms provided by the Regional Director for Region
7, after being signed by the Respondent’s authorized

28 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.”
WILLIAM BEAUMONT HOSPITAL 7
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es including all places where notices to employees are
customarily posted. In addition to 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 the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since November 15, 2012.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 7 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
3. Substitute the attached notice for that of the admin-
istrative law judge.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. April 13, 2016
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
With few exceptions, people go to the hospital because
they need to, not because they want to. Whatever an
individual patient’s condition might be, it is often seri-
ous, sometimes critical—even a matter of life or death.
Hospitals and those who work there bear a heavy obliga-
tion to make patient care their paramount concern.
I believe the Board majority disregards these important
considerations in finding that the Respondent, William
Beaumont Hospital (the Hospital), violated Federal law
by maintaining two rules in its Code of Conduct. These
rules (a) prohibit conduct that “impedes harmonious in-
teractions and relationships,” and (b) prohibit “negative
or disparaging comments about the . . . professional ca-
pabilities of an employee or physician to employees,
physicians, patients, or visitors.”
I respectfully dissent from my colleagues’ finding that
these rules constitute unlawful interference with protect-
ed rights in violation of Section 8(a)(1) of the National
Labor Relations Act (NLRA or Act). In my view, the
rules are supported by substantial justifications unrelated
to the NLRA. They predictably would have a minimal
impact, if any, on the exercise of rights afforded by
NLRA Section 7, which protects (among other things)
“concerted” activities that employees engage in for the
“purpose” of “mutual aid or protection.”1 Most im-
portantly, as the Board and the courts have recognized,
the justifications underlying these rules are especially
important in a hospital. When the NLRA was adopted
and amended to cover hospital work settings, Congress
was not seeking to end “harmonious interactions” in hos-
pitals. Nor was it the intent of Congress to require hospi-
tal patients and family members to hear “negative” and
“disparaging comments” about the “professional capabil-
ities” of doctors and nurses.
More generally, I believe the time has come for the
Board to abandon Lutheran Heritage Village-Livonia
(Lutheran Heritage),2 which renders unlawful all em-
ployment policies, work rules and handbook provisions
whenever any employee “would reasonably construe the
language to prohibit Section 7 activity.” This aspect of
the Lutheran Heritage standard applies to policies, rules
and handbook provisions that do not expressly restrict
Section 7 activity, were not adopted in response to
NLRA-protected activity, and have not been applied to
restrict such activity.3

1 For a detailed discussion of the elements of protected Sec. 7 activi-
ty, see Fresh & Easy Neighborhood Market, Inc., 361 NLRB No. 12,
slip op. at 11–23 (2014) (Member Miscimarra, concurring in part and
dissenting in part).
2 343 NLRB 646 (2004).
3 This aspect of Lutheran Heritage is sometimes called “prong one”
because the Board in Lutheran Heritage stated:
If the rule does not explicitly restrict activity protected by Section 7,
the violation is dependent upon a showing of one of the following:
(1) employees would reasonably construe the language to prohibit
Section 7 activity; (2) the rule was promulgated in response to union
activity; or (3) the rule has been applied to restrict the exercise of Sec-
tion 7 rights.
343 NLRB at 647 (emphasis added). For ease of reference, I refer to
Lutheran Heritage prong one as “Lutheran Heritage.” Similarly, I use
the term “facially neutral” to describe policies, rules and handbook
provisions that do not expressly restrict Sec. 7 activity, were not adopt-
ed in response to NLRA-protected activity, and have not been applied
to restrict NLRA-protected activity.
I have previously expressed my disagreement with the first prong of
the Lutheran Heritage standard. See, e.g., Lily Transportation Corp.,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
This case presents a tragic example of the problems
fostered by the Lutheran Heritage standard. When a
hospital obstetrics team is caring for a mother giving
birth, people would naturally want to have “harmonious
interactions and relationships” among the responsible
physicians and nurses. In this case, a full-term newborn
baby unexpectedly died, and the ensuing investigation
showed the infant’s death resulted in part from inade-
quate communication among Hospital personnel. Sepa-
rately, when a highly regarded labor and delivery nurse
resigned, the Hospital learned that two delivery nurses,
Jeri Antilla and DeAnna Brandt, had been “mean,” “nas-
ty,” “intimidating,” “negative” and “bullying.” Antilla
and Brandt were fired, and my colleagues and I agree
these discharges were lawful.
Despite this context, my colleagues find that the Hos-
pital violated Federal law by maintaining a rule against
conduct that impedes “harmonious interactions and rela-
tionships.” My colleagues apply the rudimentary analy-
sis required under Lutheran Heritage and conclude that
the mere existence of this rule violates Section 8(a)(1)
because (i) a Hospital employee would reasonably con-
strue it as prohibiting angry workplace confrontations,
(ii) the employee might be engaged in an angry work-
place confrontation at some unspecified future time, and
(iii) the angry confrontation, depending on its subject
matter and the involvement of other employees, may
constitute NLRA-protected concerted activity. True, the
NLRA sometimes protects conduct that may not be
“harmonious.”4 However, it defies common sense to
find that a hospital violates Federal law merely by stating
that physicians and nurses must promote “harmonious
interactions and relationships.”
Under Lutheran Heritage, reasonable work require-
ments have become like Lord Voldemort in Harry Pot-
ter: they are ever-present but must not be identified by
name.5 Nearly all employees in every workplace aspire

362 NLRB No. 54, slip op. at 1 fn. 3 (2015); Conagra Foods, Inc., 361
NLRB No. 113, slip op. at 8 fn. 2 (2014); Triple Play Sports Bar &
Grille, 361 NLRB No. 31, slip op. at 10 fn. 3 (2014), affd. sub nom.
Three D, LLC v. NLRB, -- F.3d --, 2015 WL 6161477 (2d Cir. Oct. 21,
2015). In this opinion, I only address Lutheran Heritage prong one; I
do not reach or pass on other aspects of that decision.
4 An employee’s disagreeable or confrontational behavior in the
course of Sec. 7 activity loses the Act’s protection if it rises to the level
of “opprobrious conduct.” Atlantic Steel Co., 245 NLRB 814, 816
(1979). However, “labor relations often involve heated disputes ‘likely
to engender ill feelings and strong responses,’” which means “an em-
ployee’s right to engage in concerted activity ‘permit[s] some leeway
for impulsive behavior.’” Inova Health System v. NLRB, 795 F.3d 68,
86 (D.C. Cir. 2015) (quoting Kiewit Power Constructors, 355 NLRB
708, 711 (2010), enfd. 652 F.3d 22 (D.C. Cir. 2011)); see NLRB v. Ben
Pekin Corp., 452 F.2d 205, 207 (7th Cir. 1971) (per curiam).
5 In the Harry Potter series, authored by J. K. Rowling, Lord
Voldemort (whose name, at birth, was Tom Marvolo Riddle) was the
to have “harmonious” dealings with their coworkers.
Nobody can be surprised that a hospital, of all workplac-
es, would place a high value on “harmonious interactions
and relationships.” There is no evidence that the re-
quirement of “harmonious” relationships actually dis-
couraged or interfered with NLRA-protected activity in
this case. Yet, in the world created by Lutheran Herit-
age, it is unlawful to state what virtually every employee
desires and what virtually everyone understands the em-
ployer reasonably expects.
I will resist the temptation to launch immediately into
an exhaustive recitation of the problems associated with
the Lutheran Heritage “reasonably construe” standard.
However, I believe Lutheran Heritage should be over-
ruled by the Board and, if not, repudiated by the courts.
In my view, multiple defects are inherent in the Lutheran
Heritage test:
 The “reasonably construe” standard entails a
single-minded consideration of NLRA-protected
rights, without taking into account the legitimate
justifications of particular policies, rules and
handbook provisions. This is contrary to Su-
preme Court precedent and to the Board’s own
cases.
 The Lutheran Heritage standard stems from sev-
eral false premises that are contrary to our statute,
the most important of which is a misguided belief
that unless employers correctly anticipate and
carve out every possible overlap with NLRA cov-
erage, employees are best served by not having
employment policies, rules and handbooks. One
can hardly suggest that it benefits employees to
deny them general guidance regarding what is re-
quired of them and what standards of conduct they
can expect or demand from coworkers. In this re-
spect, Lutheran Heritage requires perfection that
literally has become the enemy of the good.
 In many cases, Lutheran Heritage invalidates fa-
cially neutral work rules solely because they are
ambiguous in some respect. This requirement of
linguistic precision stands in sharp contrast to the
treatment of “just cause” provisions, benefit plans,
and other types of employment documents, and
Lutheran Heritage fails to recognize that many
ambiguities are inherent in the NLRA itself. See
fns. 29, 30 and 31, infra.

archenemy of Harry Potter and was so feared that almost no witch or
wizard dared speak his name, referring to him instead as “You-Know-
Who” or “He-Who-Must-Not-Be-Named.” See Wikipedia, Lord Volde
mort (https://en.wikipedia.org/wiki/Lord_Voldemort).
WILLIAM BEAUMONT HOSPITAL 9
 The Lutheran Heritage “reasonably construe” test
improperly limits the Board’s own discretion. It
renders unlawful every policy, rule and handbook
provision an employee might “reasonably con-
strue” to prohibit any type of Section 7 activity. It
does not permit the Board to recognize that some
types of Section 7 activity may lie at the periphery
of our statute or rarely if ever occur. Nor does Lu-
theran Heritage permit the Board to afford greater
protection to Section 7 activities that are deemed
central to the Act.
 Lutheran Heritage does not permit the Board to
differentiate between and among different indus-
tries and work settings, nor does it permit the
Board to take into consideration specific events
that may warrant a conclusion that particular justi-
fications outweigh a potential future impact on
some type of NLRA-protected activity.
 Finally, the Board’s Lutheran Heritage “reasona-
bly construe” test has defied all reasonable efforts
to make it yield predictable results. It has been ex-
ceptionally difficult to apply, which has created
enormous challenges for the Board and courts and
immense uncertainty and litigation for employees,
unions and employers.
This case presents an opportunity for the Board to take a
step in the direction of conducting a more even-handed
evaluation of employment policies, work rules and hand-
book provisions. By declining to take this step, the Board is
disadvantaging all parties that have struggled mightily in
this difficult area. This includes employees who, increas-
ingly, may find themselves without guidance about what is
expected of them in the workplace and what types of con-
duct may result in discipline or discharge.
What standard should replace Lutheran Heritage to
evaluate facially neutral rules? The Board must carry out
what the Supreme Court has repeatedly described as the
Board’s duty when determining whether particular work
requirements unlawfully interfere with NLRA-protected
rights. The Board has the “duty to strike the proper bal-
ance between . . . asserted business justifications and the
invasion of employee rights in light of the Act and its
policy.”6 Therefore, when evaluating a facially neutral

6 NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33–34 (1967)
(emphasis added). See also Republic Aviation v. NLRB, 324 U.S. 793,
797–798 (1945) (referring to “working out an adjustment between the
undisputed right of self-organization assured to employees under the
Wagner Act and the equally undisputed right of employers to maintain
discipline in their establishments”); NLRB v. Erie Resistor Corp., 373
U.S. 221, 229 (1963) (referring to the “delicate task” of “weighing the
interests of employees in concerted activity against the interest of the
employer in operating his business in a particular manner and of bal-
policy, rule or handbook provision, I believe the Board
must evaluate at least two things: (i) the potential adverse
impact of the rule on NLRA-protected activity, and
(ii) the legitimate justifications an employer may have
for maintaining the rule. The Board must engage in a
meaningful balancing of these competing interests, and a
facially neutral rule should be declared unlawful only if
the justifications are outweighed by the adverse impact
on Section 7 activity. When engaging in this analysis,
the Board should differentiate among different types of
NLRA-protected activities (some of which might be
deemed central to the Act and others more peripheral),
and the Board must recognize those instances where the
risk of intruding on NLRA rights is “comparatively
slight.”
7
Similarly, the Board should distinguish be-
tween substantial justifications—those that have direct,
immediate relevancy to employees or the business—and
others that might be regarded as having more peripheral
importance. The Board should make reasonable distinc-
tions between or among different industries and work
settings, and it should take into consideration particular
events that might be associated with a specific rule. Fi-
nally, the Board may find that an employer may lawfully
maintain a particular rule, notwithstanding some possible
impact on a type of protected Section 7 activity, but con-
clude that the rule cannot lawfully be applied against
employees who engage in NLRA-protected conduct.8
Paradoxically, Lutheran Heritage is too simplistic at
the same time it is too difficult to apply. Its single-
minded focus precludes reasonable distinctions that the
Board should be making in this important area. The
Board’s responsibility is to discharge the “special func-
tion of applying the general provisions of the Act to the
complexities of industrial life.”9 Though well-intended,
the Lutheran Heritage standard prevents the Board from
giving meaningful consideration to the real-world “com-
plexities” associated with many employment policies,
work rules and handbook provisions.
Based on these considerations, the Board should over-
rule Lutheran Heritage and find that the Hospital did not
violate our statute merely by maintaining the disputed

ancing . . . the intended consequences upon employee rights against the
business ends to be served by the employer’s conduct”). See also Ban-
ner Estrella Medical Center, 362 NLRB No. 137, slip op. at 13–18
(2015) (Member Miscimarra, dissenting in part).
7 NLRB v. Great Dane Trailers, Inc., 388 U.S. at 34.
8 See, e.g., Aroostook County Regional Ophthalmology Center v.
NLRB, 81 F.3d 209, 213 (D.C. Cir. 1996); Adtranz ABB Daimler-Benz
Transportation, N.A. v. NLRB, 253 F.3d 19, 28 (D.C. Cir. 2001).
9 NLRB v. Erie Resistor Corp., 373 U.S. at 236; see also NLRB v. J.
Weingarten, Inc., 420 U.S. 251, 266–267 (1975) (“The responsibility to
adapt the Act to changing patterns of industrial life is entrusted to the
Board.”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Code of Conduct provisions. I support the aggressive
enforcement of our statute, and I do not contend that eve-
ry policy, rule and handbook provision should be deemed
lawful whenever there is some type of justification. In-
deed, by balancing the interests described above, the
Board would have greater latitude when evaluating the
legality of facially neutral policies, rules and handbook
provisions.
Accordingly, as explained more fully below, I respect-
fully dissent in relevant part from the majority’s deci-
sion.10
Background
This case arises in a somber context. In December
2011, a full-term newborn baby died at the Hospital. An
investigation concluded that the reasons for the infant’s
death included a lack of communication among nurses
and failures to provide requested assistance. Subsequent-
ly, after a highly regarded labor and delivery nurse re-
signed, the Hospital learned that unnamed “senior nurs-
es” were engaging in “bullying and intimidation.” This
prompted another investigation, which led to the termina-
tion of nurses Antilla and Brandt. Antilla was discharged
for “mean, nasty, intimidating, and bullying behavior,”
and Brandt for “negative, intimidating, and bullying be-
havior.” My colleagues and I agree that both discharges
were lawful.
The Hospital’s Code of Conduct identifies important
justifications relevant to the two rules at issue here. The
Code of Conduct states:
It is the intention of Beaumont Hospitals to foster
effective working relationships among all hospital
employees and physicians in order to provide and
maintain high quality and safe patient care. Such re-
lationships must be based upon mutual respect to

10 My colleagues and I agree with the judge’s conclusion that certain
rules maintained by the Hospital were lawful. No exceptions were filed
to the judge’s findings that certain other rules violated Sec. 8(a)(1),
which means those findings are not before the Board. See fn. 40, infra.
Similarly, no exceptions were filed to the judge’s finding that the Hos-
pital violated Sec. 8(a)(1) by instructing employee Deanna Brandt not
to discuss with other employees the Respondent’s investigation into her
alleged misconduct, and I do not reach or pass on this finding.
I concur with my colleagues’ conclusion that the judge properly
found that the Hospital lawfully discharged employees Brandt and Jeri
Antilla. However, I do not reach or pass on whether the General Coun-
sel sustained his initial burden under Wright Line, 251 NLRB 1083,
1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), which is to prove that protected conduct was a motivating
factor in the Hospital’s discharge decision. I agree with the judge and
my colleagues that, even if the General Counsel satisfied this burden,
the Hospital met its burden under Wright Line to establish that it would
have discharged Brandt and Antilla without regard to their potential
involvement in protected activity.
avoid disruption of patient care or to hospital opera-
tions.
It is the expectation of hospital management that
employees and physicians promote and maintain a
professional environment in which all individual[s]
are treated with dignity and respect.
11
After this introduction, the Code of Conduct sets forth the
following rules, including two provisions (italicized below)
that my colleagues find unlawful:
Conduct on the part of a Beaumont employee or physi-
cian that is inappropriate or detrimental to patient care
of [sic] Hospital operation or that impedes harmonious
interactions and relationships will not be tolerated.
Transgressors shall be subject to appropriate remedial
or corrective action.
Improper conduct or inappropriate behavior or defiance
in the following example, which includes but [is] not
limited to the following:
[1] Willful and intentional threats, intimidation,
harassment, humiliation, or coercion of employees,
physicians, patients, or visitors.
[2] Profane and abusive language directed at em-
ployees, physicians, patients or visitors.
[3] Behavior that is rude, condescending or oth-
erwise socially unacceptable. Intentional misrepre-
sentation of information.
[4] Verbal comments or physical gestures di-
rected at others that exceed the bounds of fair criti-
cism.
[–] Unsolicited physical contact or threats of
physical contact.
[–] Written comments or illustrations in medical
records or other official documents (except incident
reports or other established hospital mechanisms for
documenting and resolving concerns) that impugn
the character or quality of care provided by a hospi-
tal or medical staff member.
[–] Sexual innuendo or improprieties.
[–] Rudeness or refusal to respond to concerns,
questions, or requests regarding patient care.
[5] Negative or disparaging comments about the
moral character or professional capabilities of an
employee or physician made to employees, physi-
cians, patients, or visitors.
[–] Negative or disparaging comments regarding
religious, ethnic or racial background, disability or
sexual orientation made to employees, physicians,
patients or visitors.

11 Code of Conduct (emphasis added).
WILLIAM BEAUMONT HOSPITAL 11
[6] Behavior that is disruptive to maintaining a
safe and healing environment or that is counter to
promoting teamwork.12
None of the above rules explicitly restricts activities protect-
ed by Section 7, nor is there any allegation that any rules
were promulgated in response to union activity or have been
applied to restrict the exercise of Section 7 rights.
Discussion
A. It is Important to Minimize Conflict and Disruptions
in Hospital Work Settings, and These Important Interests
Must Be Balanced Against NLRA-Protected Rights
The Board and the courts have long recognized the
public interest in protecting patients and family members
from needless conflict in hospital work settings. The
Supreme Court expressed this point eloquently in NLRB
v. Baptist Hospital,13 where the Court stated:
Hospitals, after all, are not factories or mines or assem-
bly plants. They are hospitals, where human ailments
are treated, where patients and relatives alike often are
under emotional strain and worry, where pleasing and
comforting patients are principal facets of the day’s ac-
tivity, and where the patient and his family—
irrespective of whether that patient and that family are
labor or management oriented—need a restful, unclut-
tered, relaxing, and helpful atmosphere, rather than one
remindful of the tensions of the marketplace in addition
to the tensions of the sick bed.14
In this case, I disagree with my colleagues’ finding that the
Hospital violated Section 8(a)(1) of the Act by maintaining
rules that (a) prohibit conduct that impedes “harmonious
interactions and relationships,” and (b) prohibit “negative or
disparaging comments about the . . . professional capabili-
ties of an employee or physician to employees, physicians,

12 For ease of reference, I use the same paragraph numbering uti-
lized in the majority opinion. The unnumbered indented paragraphs
appear in the Code of Conduct in the sequence set forth in the text, but
they are not quoted by my colleagues.
My colleagues and I agree with the judge’s finding that pars. 1, 2,
and 3, and part 1 of par. 6 (“Behavior that is disruptive to maintaining a
safe and healing environment”) are lawful. Putting aside the two provi-
sions at issue here (italicized in the text), the judge concluded that
paragraph 4 and part 2 of paragraph 6 (“behavior that is . . . counter to
promoting teamwork”) were unlawful. No exceptions were filed re-
garding these two provisions, so their legality is not before the Board.
Accordingly, I do not reach or pass on the judge’s conclusions regard-
ing these provisions.
13 442 U.S. 773 (1979).
14 Id. at 783 fn. 12 (internal quotation marks omitted). The Board
has similarly “recognized that the primary function of a hospital is
patient care and that a tranquil atmosphere is essential to the carrying
out of that function.” St. John’s Hospital, 222 NLRB 1150, 1150
(1976).
patients, or visitors.” In my view, there are two problems
with my colleagues’ analysis. It applies the Lutheran Herit-
age “reasonably construe” standard, which I believe should
be overruled for the reasons set forth in Part B below. And
it fails to give adequate consideration to the Hospital work
setting here and fails to attach any weight to the compelling
justifications associated with the disputed rules, as ad-
dressed in Part C below.
B. Lutheran Heritage Should Be Overruled
by the Board or Repudiated by the Courts
My colleagues support their findings of illegality based
on prong one of Lutheran Heritage, under which facially
neutral policies, work rules and handbook provisions—
which do not expressly restrict Section 7 activity, were
not adopted in response to NLRA-protected activity, and
have not been applied to restrict NLRA-protected activi-
ty—are deemed unlawful whenever any employee
“would reasonably construe the language to prohibit Sec-
tion 7 activity.”15 For the following reasons, I believe
the Lutheran Heritage “reasonably construe” test should
be overruled.16
First, the Lutheran Heritage “reasonably construe”
standard is contrary to Supreme Court precedent because
it does not permit any consideration of the legitimate
justifications that underlie many policies, rules and
handbook provisions. These justifications are often sub-
stantial, as illustrated by the instant case. More im-
portantly, the Supreme Court has repeatedly required the
Board to take these justifications into account. We rec-
ognized this in Lafayette Park Hotel,17 where a five-

15 343 NLRB at 647 (quoted more fully in fn. 31, supra).
16 Even if one applies Lutheran Heritage, I believe the majority
cannot reasonably conclude that Hospital employees would construe
the two work rules at issue here as interfering with NLRA-protected
activities. Of all people, the employees of the Hospital—where succes-
sive investigations revealed that dysfunctional work relationships di-
rectly interfered with patient care and employee retention—would
understand that these rules are justified by the importance of providing
high-quality and safe health care and avoiding potential liability, with-
out regard to any employee’s potential exercise or non-exercise of
NLRA-protected rights. See Lafayette Park Hotel, 326 NLRB at 825;
St. John’s Hospital, 222 NLRB at 1150. The connection between pa-
tient care and the two challenged rules is reinforced by the Code of
Conduct’s introductory language, which explains (among other things)
that the Hospital intended through the Code to “foster effective working
relationships among all hospital employees and physicians in order to
provide and maintain high quality and safe patient care,” and that such
relationships “must be based upon mutual respect to avoid disruption of
patient care . . .” (emphasis added). Accordingly, the judge properly
concluded that “a reasonable reading of most of the rules shows they
are unrelated to and do not prohibit Section 7 activities,” and “a reason-
able employee would read the rules in the context of the employment
setting, a hospital, and understand the lawful purpose of the rules.”
17 326 NLRB 824 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
member Board quoted the Supreme Court’s decision in
Republic Aviation v. NLRB18 and held:
Resolution of the issue presented by . . . contested rules
of conduct involves “working out an adjustment be-
tween the undisputed right of self-organization assured
to employees under the Wagner Act and the equally
undisputed right of employers to maintain discipline in
their establishments. . . . Opportunity to organize and
proper discipline are both essential elements in a bal-
anced society.”19
Nor does Republic Aviation stand alone. The Supreme
Court elsewhere has similarly required the Board to weigh
the interests potentially advanced by a particular work re-
quirement or restriction before the Board concludes that its
potential adverse impact on employee rights warrants a find-
ing of unlawful interference with NLRA rights. See NLRB
v. Great Dane Trailers, Inc., 388 U.S. at 33–34 (referring to
the Board’s “duty to strike the proper balance between . . .
asserted business justifications and the invasion of employ-
ee rights in light of the Act and its policy”); NLRB v. Erie
Resistor Corp., 373 U.S. at 229 (referring to the “delicate
task” of “weighing the interests of employees in concerted
activity against the interest of the employer in operating his
business in a particular manner and of balancing . . . the
intended consequences upon employee rights against the
business ends to be served by the employer’s conduct”).
See also Banner Estrella Medical Center, 362 NLRB No.
137, slip op. at 13–18 (Member Miscimarra, dissenting in
part). Cf. First National Maintenance Corp. v. NLRB, 452
U.S. 666, 680–681 (1981) (“[T]he Act is not intended to
serve either party’s individual interest, but to foster in a neu-
tral manner a system in which the conflict between these
interests may be resolved.”).
Second, Lutheran Heritage is contradicted by NLRB
case law. For example, the Board has recognized it is

18 324 U.S. 793 (1945).
19 326 NLRB at 825 (quoting Republic Aviation v. NLRB, 324 U.S.
at 797–798). The Board in Lafayette Park Hotel stated that “[i]n de-
termining whether the mere maintenance of [disputed] rules violates
Section 8(a)(1), the appropriate inquiry is whether the rules would
reasonably tend to chill employees in the exercise of their Section 7
rights.” However, Member Hurtgen observed that a rule may reasona-
bly chill the exercise of Sec. 7 rights but still be justified by significant
employer interests. 326 NLRB at 825 fn. 5. Member Hurtgen noted
that no-solicitation rules restrict the exercise of Sec. 7 rights (by sub-
jecting employees to discipline or discharge if they engage in solicita-
tion—including union solicitation—during working time), but these
restrictions have been deemed lawful based on Board precedent dating
back more than 70 years establishing that “[w]orking time is for work”
and that the employer’s interest in production outweighs the Sec. 7
right of employees to engage in solicitation during working time. Pey-
ton Packing Co., 49 NLRB 828, 843 (1943), enfd. 142 F.2d 1009 (5th
Cir. 1944), cert. denied 323 U.S. 730 (1944). See also fn. 48, infra.
lawful for an employer to adopt no-solicitation and no-
distribution rules (prohibiting all employee solicitation—
including union-related solicitation—during working
time, and prohibiting all distribution of literature—
including union-related literature—in work areas).20
Employers may also lawfully maintain a no-access rule
that prohibits off-duty employees from accessing the
interior of the employer’s facility and outside work areas,
even if they desire access to engage in protected picket-
ing, handbilling, or solicitation.21 Similarly, employers
have adopted “just cause” provisions and attendance re-
quirements that cause employees to be disciplined or
discharged for failing to come to work, even though em-
ployees have a Section 7 right to engage in protected
strikes.22 Each of these rules fails the Lutheran Heritage
“reasonably construe” test because each one clearly re-
stricts potential Section 7 activity. Yet each requirement
has been upheld by the Board.
Third, in many cases involving facially neutral poli-
cies, rules and handbook provisions, the Board has en-
gaged in a balancing of competing interests rather than
strictly applying the Lutheran Heritage “reasonably con-
strue” test. Indeed, in the instant case, the judge correct-
ly reasoned that evaluating whether facially neutral work
rules violate Section 8(a)(1) “requires a balancing of
competing interests: the right of employees to organize
or otherwise engage in protected activity and the right of
employers to maintain a level of discipline in the work-
place.” As noted above, in Lafayette Park Hotel the
Board attached weight to the justifications underlying
particular work rules in addition to their potential adverse

20 See Our Way, Inc., 268 NLRB 394 (1983); Essex International,
211 NLRB 749 (1974); Stoddard-Quirk Mfg. Co., 138 NLRB 615, 621
(1962); Peyton Packing, 49 NLRB at 843. See also discussion in fn. 46
supra.
21 See GTE Lenkurt, Inc., 204 NLRB 921, 921–922 (1973); Tri-
County Medical Center, 222 NLRB 1089 (1976). In GTE Lenkurt, the
Board upheld an employee handbook no-access provision limiting the
right of off-duty employees to be on the premises. Stating that deter-
mining the legality of the no-access rule "requires a balancing of the
employees’ Section 7 rights against the employer’s private property
rights,” the Board held that the rule was lawful. 204 NLRB at 921–
922. In Tri-County, the Board reiterated that a no-access rule applica-
ble to off-duty employees will be lawful, provided that the rule “(1)
limits access solely with respect to the interior of the plant and other
working areas; (2) is clearly disseminated to all employees; 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.”
222 NLRB at 1089.
22 See, e.g., Health Management, Inc., 326 NLRB 801 (1998) (em-
ployee lawfully discharged for just cause for continuing attendance and
tardiness problems); Cambridge Chemical Corp., 259 NLRB 1374
(1981) (same); South Carolina Industries, 181 NLRB 1031 (1970)
(same).
WILLIAM BEAUMONT HOSPITAL 13
impact on Section 7 rights.23 In Caesar’s Palace,24 the
Board upheld a confidentiality rule pertaining to a work-
place investigation, even though the rule limited the right
of employees to engage in NLRA-protected discussions.
The Board’s analysis in Caesar’s Palace has equal appli-
cation here:
We agree with the judge that employees have a Section
7 right to discuss discipline or disciplinary investiga-
tions involving fellow employees. We also agree that
the Respondent’s rule prohibiting discussion of the on-
going drug investigation adversely affected employees’
exercise of that right. It does not follow however that
the Respondent’s rule is unlawful and cannot be en-
forced. The issue is whether the interests of the Re-
spondent’s employees in discussing this aspect of their
terms and conditions of employment outweigh[] the
Respondent’s asserted legitimate and substantial busi-
ness justifications.25
Again, although Lutheran Heritage dispensed with any con-
sideration of business justifications, the Board upheld a no-
photography rule in a subsequent case, Flagstaff Medical
Center,26 in part because the rule implicated “weighty” in-
terests associated with patient confidentiality.27 In all these
decisions, the Board has deemed it necessary, when evaluat-
ing the legality of one or more work rules, to consider both
Section 7 rights and the business justifications associated
with a particular rule. As the judge properly recognized in
the instant case, any different approach “would ignore the

23 See, e.g., 326 NLRB at 825 (observing that disputed rule “ad-
dresses legitimate business concerns”), 826 (in finding confidentiality
rule lawful, observing that “businesses have a substantial and legitimate
interest in maintaining the confidentiality of private information”), 827
(noting “legitimate business reasons” for rule requiring employees to
secure permission before using the hotel’s restaurant or cocktail lounge
to entertain friends or guests).
24 336 NLRB 271 (2001).
25 336 NLRB at 272 (emphasis added) (citing Jeannette Corp. v.
NLRB, 532 F.2d 916 (3d Cir. 1976)).
26 357 NLRB 659 (2011), petition for review granted in part and de-
nied in part 715 F.3d 928 (D.C. Cir. 2013).
27 Id. at 663. In Flagstaff, the Board majority upheld a rule prohibit-
ing employees from taking photographs of patients or hospital property.
The majority emphasized the “weighty” privacy interests of hospital
patients and the hospital’s “significant interest in preventing the wrong-
ful disclosure of individually identifiable health information, including
by unauthorized photography.” Id. The majority reasoned that
“[e]mployees would reasonably interpret [the hospital’s] rule as a legit-
imate means of protecting the privacy of patients and their hospital
surroundings, not as a prohibition of protected activity.” Id. However,
then-Member Pearce relevantly dissented because under Lutheran
Heritage the analysis turns exclusively on how an employee would
“reasonably construe” the no-photography rule in relation to NLRA-
protected rights, and he reasoned that “employees would reasonably
construe the rule’s language to prohibit Section 7 activity.” Id. at 670
(Member Pearce, dissenting in part).
employer’s rights in the Lafayette balancing test and consid-
er only potential employee rights.”
Fourth, Lutheran Heritage is predicated on false prem-
ises that are inconsistent with the Act and contrary to the
Board’s responsibility to promote certainty, predictability
and stability.28 Several considerations are relevant here:
 Because the Act protects so many potential con-
certed activities (including the right to refrain
from such activities), a wide variety of facially
neutral rules can be interpreted, under some hy-
pothetical scenario, as a potential limitation on
some type of Section 7 activity.
 Lutheran Heritage requires employers to elimi-
nate all ambiguities from all policies, rules and
handbook provisions that might conceivably
touch on some type of Section 7 activity, but
this disregards the fact that generalized provi-
sions related to employment—including those
relating to discipline and discharge—have been
deemed acceptable throughout the Act’s histo-
ry.29

28 One of the Board’s primary responsibilities under the Act is to
promote labor relations stability. See, e.g., Northwestern University,
362 NLRB No. 167 (2015) (Board declines to exercise jurisdiction in
relation to scholarship football student-athletes because doing so would
not promote stability in labor relations). See also Auciello Iron Works,
Inc. v. NLRB, 517 U.S. 781, 790 (1996) (describing “the Act’s goal of
achieving industrial peace by promoting stable collective-bargaining
relationships”); Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355,
362–363 (1949) (“To achieve stability of labor relations was the prima-
ry objective of Congress in enacting the National Labor Relations
Act.”); NLRB v. Appleton Electric Co., 296 F.2d 202, 206 (7th Cir.
1961) (“A basic policy of the Act [is] to achieve stability of labor rela-
tions.”).
The Supreme Court has stressed the need to provide “certainty be-
forehand” for employers and unions so employers can “reach decisions
without fear of later evaluations labeling . . . conduct an unfair labor
practice,” and so a union may discern “the limits of its prerogatives,
whether and when it could use its economic powers . . . , or whether, in
doing so, it would trigger sanctions from the Board.” First National
Maintenance Corp. v. NLRB, 452 U.S. at 678–679, 684–686.
29 Linguistic perfection has not been required in other types of em-
ployment provisions enforced by the Board and the courts. As I have
stated elsewhere:
It does not per se violate Federal labor law to use a general phrase to
describe the type of conduct that may [result in discipline or dis-
charge]. If it did, “just cause” provisions contained in most collective-
bargaining agreements that have been entered into since the Act’s
adoption nearly 80 years ago would be invalid. However, “just cause”
provisions have been called “an obvious illustration” of the fact that
many provisions “must be expressed in general and flexible terms.”
More generally, the Supreme Court has stated, in reference to collec-
tive-bargaining agreements, that there are “a myriad of cases
which the draftsmen cannot wholly anticipate,” and “[t]here are too
many people, too many problems, too many unforeseeable contingen-
cies to make the words . . . the exclusive source of rights and duties.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
 Another false premise of Lutheran Heritage is
the notion that employers drafting facially neu-
tral policies, rules and handbook provisions can
anticipate and avoid all potential interpretations
that may conflict with NLRA-protected activi-
ties. This disregards the fact that statutory am-
biguities pervade the NLRA.30 Even if em-
ployment policies and rules reproduced the full
text of the NLRA, they will never attain a level
of clarity greater than what Congress incorpo-
rated into the statute itself. Therefore, it is like-
ly that one can “reasonably construe” even the
most carefully crafted rules in a manner that
prohibits some hypothetical type of Section 7
activity.31

Triple Play Sports Bar & Grille, 361 NLRB No. 31, slip op. at 11
(Member Miscimarra, dissenting in part) (quoting Steelworkers v. War-
rior & Gulf Navigation Co., 363 U.S. 574, 578–579 (1960); Archibald
Cox, Reflections Upon Labor Arbitration, 72 HARV. L. REV. 1482,
1491 (1959)) (other citations and internal quotation marks omitted).
Ironically, the Board itself in Lutheran Heritage stated: “Work rules
are necessarily general in nature . . . . We will not require employers to
anticipate and catalogue in their work rules every instance in which
[prohibited types of speech] might conceivably be protected by (or
exempted from the protection of) Section 7.” 343 NLRB at 648. As
illustrated by the instant case, however, the Board has lost sight of this
language in applying Lutheran Heritage.
30 Nobody can reasonably suggest that employers can incorporate
into policies, rules and handbooks the precise contours of Sec. 7 protec-
tion when these contours have produced so much disagreement be-
tween and among the General Counsel, administrative law judges,
different Board members, and the courts. See, e.g., Fresh & Easy
Neighborhood Market, Inc., 361 NLRB No. 12 (2014) (divided opin-
ions regarding whether a single employee’s complaint asserting statuto-
ry rights constituted protected concerted activity); Purple Communica-
tions, Inc., 361 NLRB No. 126 (2014) (divided opinions regarding
whether employees have a statutory right to use employer email sys-
tems for Sec. 7 purposes); D. R. Horton, Inc. v. NLRB, 737 F.3d 344
(5th Cir. 2013) (court of appeals rejects Board majority’s finding that
arbitration agreements containing class-action waivers unlawfully
interfere with Sec. 7 activity); Murphy Oil USA, Inc. v. NLRB, 808 F.3d
1013 (5th Cir. 2015) (same). As the Supreme Court stated in one case,
some provisions of the Act “could not be literally construed,” there was
no “glaringly bright line” between permitted and prohibited activity,
and “[h]owever difficult the drawing of lines more nice than obvious,
the statute compels the task.” Electrical Workers Local 761 v. NLRB,
366 U.S. 667, 672–674 (1961).
31 In cases involving important employee benefits documents such
as summary plan descriptions that are required under the Employee
Retirement Income Security Act (ERISA), substantial deference is
usually afforded the plan administrator—often, the employer—whose
determinations may be deemed final and binding whenever this is stat-
ed in relevant benefit documents. See, e.g., Firestone Tire & Rubber
Co. v. Bruch, 489 U.S. 101, 115 (1989) (indicating that a court will not
engage in de novo review of a plan administrator’s decisions if the
“benefit plan gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to construe the terms of
the plan”).
By comparison, in Board decisions applying Lutheran Heritage,
ambiguity in generalized work rule language causes the rule to be held
The broader premise of Lutheran Heritage, which is even
more seriously flawed, is the notion that employees are bet-
ter served by not having employment policies, rules and
handbooks. Nothing in the NLRA requires employers to
adopt policies, rules and handbook provisions.32 Moreover,
employees in the United States remain generally subject to
the doctrine of employment-at-will, which means employ-
ees can be discharged for any reason or no reason at any
time.33 Therefore, it would be lawful for employers to make
all decisions regarding the potential discipline and discharge
of employees on a case-by-case basis, where no expecta-
tions or requirements are communicated in advance. This
would impose substantial hardship on employers that strive
for consistency and fairness when making such decisions,
and employees would not know what standards of conduct
they must satisfy to keep their jobs. Also, I believe this
would be irreconcilable with the Act’s emphasis on stabil-
ity, certainty and predictability.34 However, this is the logi-

unlawful, in part because the Board also applies the principle that
ambiguity must be construed against the drafter. See, e.g., Rio All-
Suites Hotel & Casino, 362 NLRB No. 190, slip op. at 1 (2015); Shera-
ton Anchorage, 362 NLRB No. 123, slip op. at 1–2 fn. 4 (2015); Hyun-
dai America Shipping Agency, Inc., 357 NLRB 860, 870 (2011).
Again, the (unattainable) requirement of linguistic perfection, which
uniquely applies to facially neutral policies, rules and handbook
provisions, stands in stark contrast to the wide latitude with which the
Board and courts have always treated generalized language in
collective-bargaining agreements. See fn. 57, supra.
32 Employers are required to maintain certain documentation under
state and federal statutes other than the NLRA. For example, employ-
ers are required to have procedures to investigate and remedy com-
plaints of various types of workplace harassment to avoid liability
under Title VII of the Civil Rights Act of 1964. See, e.g., Faragher v.
City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries v.
Ellerth, 524 U.S. 742 (1998). ERISA requires employers to have cer-
tain plan documents and summary plan descriptions regarding employ-
ee benefits. See, e.g., 29 U.S.C. § 1022. The Workers Adjustment and
Retraining Notification Act (WARN) requires employers to provide 60
days’ written notice to various parties in advance of business changes
that constitute a “plant closing” or “mass layoff.” 29 U.S.C. § 2101 et
seq. Ironically, under Lutheran Heritage, these types of documenta-
tion, where made available to employees—even though required by
other legal obligations—would be deemed unlawful by the Board
whenever they could be “reasonably construed” to adversely affect
NLRA-protected activity.
Putting aside whether an employer’s facially neutral rules violate
Sec. 8(a)(1), employers must comply with the Act’s other provisions.
Therefore, if there is a certified or recognized union, for example, the
employer’s 8(a)(5) obligation to bargain may require negotiations over
existing or potential policies, rules or handbook provisions.
33 There are exceptions to the employment-at-will doctrine where a
discharge would violate a statutory requirement or prohibition (for
example, Title VII or the Age Discrimination in Employment Act),
constitute wrongful discharge in violation of public policy in certain
states (see, e.g., Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d
353 (1978)), or violate a “just cause” provision in a collective-
bargaining agreement or a similar provision in some other type of em-
ployment contract.
34 See fn. 28, supra.
WILLIAM BEAUMONT HOSPITAL 15
cal outgrowth of Lutheran Heritage, and it may very well be
its legacy. Indeed, the remedy in this case, like all other
cases that apply prong one of Lutheran Heritage, requires
rescission of every offending provision contained in the
Hospital’s Code of Conduct.
Fifth, the Lutheran Heritage “reasonably construe” test
imposes too many restrictions on the Board. By making
legality turn exclusively on whether an employee would
“reasonably construe” a rule to prohibit any type of Sec-
tion 7 activity, Lutheran Heritage requires a “one-size-
fits-all” analysis that gives the same treatment to every
potential intrusion on Section 7 rights, however slight it
might be and however remote the possibility that em-
ployees would actually engage in such protected activity.
The “reasonably construe” test permits no consideration
of the justifications for a particular rule, which in turn
prevents the Board from treating some justifications as
warranting greater weight than others. Lutheran Herit-
age prevents the Board from making important distinc-
tions between different types of rules, different business
justifications, and different Section 7 rights, and it disre-
gards differences between rules with respect to their po-
tential impact on protected rights. Abandoning Lutheran
Heritage would permit the Board to engage in a more
refined evaluation of these significant variables.35
Sixth, Lutheran Heritage prevents the Board from
considering the unique characteristics of particular work
settings and different industries, or specific events that
might be associated with a particular policy, rule or
handbook provision. The instant case illustrates the
problems associated with this limitation. As noted
above, the Board and the courts have long recognized the
importance of avoiding needless conflict and disruptions
in an acute-care hospital setting.36 And in Flagstaff, the
Board majority upheld a hospital’s no-photography
rule—notwithstanding its potential impact on Section 7
activity—after considering the “weighty” privacy inter-
ests of patients and the hospital’s “significant interest in

35 I believe it is the Board’s responsibility—not the responsibility of
employers, unions or employees—to balance the legitimate interests
served by a facially neutral policy, rule or handbook provision with the
potential infringement on Sec. 7 rights. See Banner Estrella Medical
Center, 362 NLRB No. 137, slip op. at 13–18 (Member Miscimarra,
dissenting in part) (expressing disagreement with the majority’s placing
on the employer the task of case-by-case “weighing” and “balancing”
when attempting to determine whether it is lawful to request non-
disclosure of what is discussed during a workplace investigation meet-
ing). This more refined balancing, when conducted by the Board,
would permit the Board to develop more detailed standards for specific
types of rules, particular types of Sec. 7 activity, and whether or when
certain justifications do or do not outweigh a risk of interference with
employee rights.
36 See NLRB v. Baptist Hospital, 442 U.S. at 773; St. John’s Hospi-
tal, 222 NLRB at 1150.
preventing the wrongful disclosure of individually identi-
fiable health information, including by unauthorized pho-
tography.”37 Yet Flagstaff dealt merely with “privacy”
and the “wrongful disclosure of . . . information,” which
pale in comparison to the interests implicated in the in-
stant case, where inadequate coordination and dysfunc-
tional interaction among Hospital personnel contributed
to an unexpected death. Nonetheless, the majority at-
taches no weight to the hospital work setting or this event
and its contributing causes because this is not permitted
by the Lutheran Heritage “reasonably construe” stand-
ard.
Finally, Lutheran Heritage has caused extensive con-
fusion and litigation for employers, unions, employees
and the Board itself. The “reasonably construe” standard
has defied all reasonable efforts to apply and explain it.38
Indeed, even with the benefit of hindsight, it is still diffi-
cult to understand Board rulings that uphold some facial-

37 357 NLRB at 663.
38 See GC Memorandum 15-04 (March 18, 2015); GC Operations
Memorandum 12–59 (May 30, 2012); GC Operations Memorandum
12-31 (Jan. 24, 2012); GC Operations Memorandum 11–74 (Aug. 18,
2011). See also U.S. Chamber of Commerce, Theater of the Absurd:
The NLRB Takes on the Employee Handbook (available at
http://www.workforcefreedom.com/sites/default/files/NLRB_Theater%
20of%20the%20Absurd.pdf, last accessed December 14, 2015) (criti-
cizing the Board’s decisions regarding employee handbook policies as
“seem[ing] to run counter to any balanced reading of the NLRA”);
Brice, Fifer, and Naron, Social Media in the Workplace: The NLRB
Speaks, 24 No. 10 Intell. Prop. & Tech. L.J. 13 (2012) (calling the
Board’s disapproval of some social media rules under the Lutheran
Heritage test “far from intuitively obvious”); Liss, Beware That Your
Social Media Policies Do Not Draw the Ire of the National Labor Rela-
tions Board, 70 J. Mo. B. 324 (2014) (discussing the difficulty of un-
derstanding and applying the Board’s recent interpretations of the Lu-
theran Heritage “reasonable employee” standard to rules governing
employees’ use of social media); Green, Using Social Networking to
Discuss Work: NLRB Protection for Derogatory Employee Speech and
Concerted Activity, 27 Berkley Tech. L.J. 837 (2012) (same); O’Brien,
The National Labor Relations Board: Perspectives on Social Media, 8
Charleston L. Rev. 411 (2014) (same); Hemenway, The NLRB and
Social Media: Does the NLRB “Like” Employee Interests?, 38 J. Corp.
L. 607 (2013) (citing inconsistencies in the Board’s interpretation of
social media policies); Link, Employers Beware, 284-OCT N.J. Law.
24 (2013) (calling the Board’s guidance on social media policies “in-
ternally inconsistent at times, and frequently ambiguous”); Logan,
Social Media Policy Confusion: The NLRB’s Dated Embrace of Con-
certed Activity Misconstrues the Realities of Twenty-First Century
Collective Action, 15 Nev. L.J. 754 (2014) (“The Board’s inconsistent
adaptation of the NLRA to social media policies is ‘causing concern
and confusion.’”); McNamara, The Times are Changing: Protecting
Employers in Today’s Evolving Workplace, 2011 WL 601173 (2011)
(citing the Board’s “confusing” application of Lutheran Heritage to
employer work rules); Rojas, The NLRB’s Difficult Journey Down the
Information Super Highway: A New Framework for Protecting Social
Networking Activities Under the NLRA, 51 Washburn L.J. 663 (2012)
(asserting that application of the Board’s current standards under Lu-
theran Heritage to social networking is “impractical, inefficient, and
inconsistent with the purposes of the Act”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
ly neutral rules while invalidating others.39 For example,
in the instant case, consider the hard-working judge’s
careful effort to parse a small number of Board and court
decisions cited in her opinion:
 In Lafayette Park Hotel,40 it was lawful to have
a rule prohibiting “conduct that does not support
the . . . Hotel's goals and objectives,” even
though this arguably encompassed conduct that
did not support the Hotel’s goal of remaining
nonunion, which would prohibit union organiz-
ing by employees. However, it was deemed un-
reasonable to assume, without more, that re-
maining nonunion was one of the goals encom-
passed by the rule.
 In Lafayette Park Hotel as in a similar case,41 it
was unlawful to maintain a rule prohibiting
“false, vicious, profane or malicious statements
toward or concerning the . . . [employer] or any
of its employees” because such statements could
occur in the context of activities protected under
Section 7.
 In Adtranz ABB Daimler-Benz Transportation v.
NLRB, the court found it was lawful to have a
rule prohibiting “abusive or threatening lan-
guage to anyone on company premises,” which
the court found required employees to “comply
with generally accepted notions of civility.”42
The court deemed this “quite different” from
Lafayette Park Hotel and a similar Board case,43
in which the Board found that it was unlawful to
maintain rules “threatening to punish ‘false’

39 Since Lutheran Heritage was decided in 2004, the Board has eval-
uated a variety of facially neutral policies, work rules and handbook
provisions. See, e.g., Quicken Loans, 359 NLRB No. 141 (2013);
Knauz BMW, 358 NLRB 1754 (2012); Costco Wholesale Corp., 358
NLRB 1100 (2012); 2 Sisters Food Group, Inc., 357 NLRB 1816
(2011); Roomstore, 357 NLRB 1690 (2011); Hyundai America Ship-
ping Agency, supra, 357 NLRB at 860 (2011); River’s Bend Health &
Rehabilitation Services, 350 NLRB 184 (2007); Inter-Disciplinary
Advantage, 349 NLRB 480 (2007); Palms Hotel & Casino, 344 NLRB
1363 (2005); Claremont Resort & Spa, 344 NLRB 832 (2005); Triple
Play Sports Bar & Grille, supra, 361 NLRB No. 31; Flex Frac Logis-
tics, LLC, 358 NLRB 1131 (2012), enfd. 746 F.3d 205 (5th Cir. 2014);
Arkema, Inc., 357 NLRB 1248 (2011), enf. denied 710 F.3d 308 (5th
Cir. 2013); Tenneco Automotive, Inc., 357 NLRB 953 (2011), enfd. in
pert. part 716 F.3d 640 (D.C. Cir. 2013); NLS Group, 352 NLRB 744
(2008), affd. 355 NLRB 1154, enfd. 645 F.3d 475 (1st Cir. 2011);
Guardsmark, LLC, 344 NLRB 809 (2005), enfd. in part 475 F.3d 369
(D.C. Cir. 2007); Cintas Corp., 344 NLRB 943 (2005), enfd. 482 F.3d
463 (D.C. Cir. 2007). As explained in the text, the conflicting out-
comes of these cases are sometimes virtually impossible to rationalize.
40 326 NLRB at 824.
41 Cincinnati Suburban Press, Inc., 289 NLRB 966, 975 (1988).
42 253 F.3d at 27.
43 Flamingo Hilton-Laughlin, 330 NLRB 287 (1999).
statements without evidence of malicious in-
tent.”44
 In Lutheran Heritage,45 it was lawful to main-
tain rules prohibiting “verbal abuse,” “abusive
or profane language,” and “harassment.” Alt-
hough Lutheran Heritage renders unlawful eve-
ry rule that an employee would “reasonably
construe” to prohibit Section 7 activity, the
Board stated that a rule would not be unlawful
merely because it “could be interpreted that
way.”46
 In Palms Hotel & Casino,47 it was lawful to
have a rule prohibiting “conduct which is . . . in-
jurious, offensive, threatening, intimidating, co-
ercing, or interfering with” other employees be-
cause the rule was not “so amorphous that rea-
sonable employees would be incapable of grasp-
ing the expectation that they comport them-
selves with general notions of civility and deco-
rum in the workplace.”48
 In Flamingo Hilton-Laughlin,49 it was unlawful
to have a rule prohibiting “loud, abusive or foul
language” because this was so broad that it
“could reasonably be interpreted as barring law-
ful union organizing propaganda.”50
 In 2 Sisters Food Group,51 it was unlawful to
maintain a rule subjecting employees to disci-
pline for “inability or unwillingness to work
harmoniously with other employees” because
the employer did not “define what it means to
‘work harmoniously’ (or to fail to do so),” and
the rule was “sufficiently imprecise that it could
encompass any disagreement or conflict among
employees, including those related to discus-
sions and interactions protected by Section 7.”52
 In The Roomstore, it was unlawful to maintain a
rule prohibiting “[a]ny type of negative energy
or attitudes.”53 Similarly, in Claremont Resort
& Spa, it was unlawful to maintain a rule pro-
hibiting “[n]egative conversations about associ-
ates and/or managers” because the employer did

44 253 F.3d at 26–27.
45 343 NLRB at 646.
46 343 NLRB at 647 (emphasis in original).
47 344 NLRB 1363 (2005).
48 Id. at 1368.
49 330 NLRB at 287.
50 Id. at 295.
51 357 NLRB at 1816.
52 Id. at 1817.
53 357 NLRB at 1690 fn. 3.
WILLIAM BEAUMONT HOSPITAL 17
not “clarif[y] any potential ambiguities in its
rule by providing examples.”54

54 344 NLRB at 836.
The above cases comprise an extremely small sampling of
Board and court cases addressing a single, narrow category
of policies, rules and handbook provisions. The disputed
rules also occupy a very narrow space that involves promot-
ing civility and respect. Do these cases permit one to under-
stand what the “lawful” rules do correctly and what the “un-
lawful” rules do incorrectly? I believe the rather obvious
answer is no. The above cases yield the following results:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
Lawful Rule Unlawful Rule
 no “abusive or threatening language to any-
one on Company premises”
 no “verbal abuse,” “abusive or profane lan-
 guage,” or “harassment”
 no “conduct which is . . . injurious, offensive,
threatening, intimidating, coercing, or inter-
fering with” other employees
 prohibiting “conduct that does not support the
. . . Hotel’s goals and objectives”
 no “loud, abusive, or foul language”
 no “false, vicious, profane or malicious state-
ments toward or concerning the . . . Hotel or
any of its employees”
 no “inability or unwillingness to work harmo-
niously with other employees”
 no “negative energy or attitudes”
 no “[n]egative conversations about associates
and/or managers”
These examples reveal that the Lutheran Heritage “reason-
ably construe” standard, to a substantial degree, has led to
arbitrary results. Would an employee “reasonably construe”
a difference between prohibiting “abusive or threatening
language to anyone on Company premises” (held lawful in
Adtranz) and prohibiting “loud, abusive, or foul language”
(deemed unlawful in Flamingo Hilton)? Would employees
be unlawfully discouraged from engaging in NLRA-
protected activity by a rule prohibiting “false, vicious, pro-
fane or malicious statements” (deemed unlawful in Lafa-
yette Park Hotel) while perceiving they may freely engage
in protected activity when a handbook prohibits conduct that
is “injurious, offensive, threatening, intimidating, coercing,
or interfering with” other employees (deemed lawful in
Palms Hotel & Casino)? Here as well, I believe the rather
obvious answer is no.
It bears emphasis that the above questions relate to the
outcome of cases that have already been decided, regard-
ing a single, narrow category of rules aimed at fostering
workplace civility. The challenges become orders of
magnitude greater if one attempts to address, in advance,
the entire spectrum of issues that warrant treatment in
policies, work rules or handbook provisions. The Board
can and should do better in this area, and I believe em-
ployees, unions and employers deserve better.
I do not fault my predecessors on the Board who, with
good intentions, articulated the “reasonably construe”
standard in Lutheran Heritage. Section 7 rights deserve
protection, and Section 8(a)(1) makes it unlawful for an
employer to interfere with, restrain or coerce employees
in the exercise of those rights. Additionally, Lutheran
Heritage contained numerous qualifications that more
recent decisions have disregarded.55 Finally, more than a

55 For example, the Board majority in Lutheran Heritage stated:
“Where, as here, the rule does not refer to Section 7 activity, we will
not conclude that a reasonable employee would read the rule to apply to
such activity simply because the rule could be interpreted that way. To
take a different analytical approach would require the Board to find a
decade has passed since the Board articulated the Lu-
theran Heritage “reasonably construe” standard. Our
experience with this standard has revealed its substantial
limitations, as well as its departure from the type of bal-
ancing required by Supreme Court precedent and the
Board’s own decisions. For all of these reasons, Luther-
an Heritage should be overruled, and the Board should
strive to remedy the confusion that this standard has pro-
duced.
C. The Board Should Conduct a “Proper Balance” by
Considering Justifications Associated with a Facially
Neutral Work Rule as well as Any Potential Impact on
NLRA-Protected Rights
In this case and all others in which one or more facial-
ly neutral policies, rules and handbook provisions are at
issue, the Board should resume doing what the Supreme
Court has repeatedly required, which is to carry out its
“duty to strike the proper balance between . . . asserted
business justifications and the invasion of employee
rights in light of the Act and its policy.”56 When dis-
charging this duty, the following considerations would
have particular relevance:
 Contrary to the analysis required under the Lu-
theran Heritage “reasonably construe” standard,

violation whenever the rule could conceivably be read to cover Section
7 activity, even though that reading is unreasonable. We decline to take
that approach.” 343 NLRB at 647 (emphasis in original). Thus, the
Board majority rejected the view expressed by dissenting Members
Liebman and Walsh, who contended that a facially neutral work rule
should be deemed unlawful whenever it could be interpreted to encom-
pass Sec. 7 activity. Nonetheless, the latter view has been effectively
adopted in many subsequent decisions through application of the prin-
ciple that ambiguity is construed against the employer as the drafter of
the rule. See fn. 31, supra.
56 NLRB v. Great Dane Trailers, Inc., 388 U.S. at 33-34 (emphasis
added). See also NLRB v. Erie Resistor Corp., 373 U.S. at 229; Repub-
lic Aviation v. NLRB, 324 U.S. at 797–798; Banner Estrella Medical
Center, 362 NLRB No. 137, slip op. at 13–18 (Member Miscimarra,
dissenting in part); see fn. 34, supra.
WILLIAM BEAUMONT HOSPITAL 19
the Board must consider at least two things
when evaluating a particular policy, rule or
handbook provision: (i) its potential adverse
impact on NLRA-protected activity, and (ii) the
legitimate justifications that may be associated
with it.57 The Board must engage in a meaning-
ful balancing of these competing interests, and a
facially neutral work requirement should be de-
clared unlawful only if the justifications are
outweighed by an adverse impact on Section 7
activities.
 When conducting this balancing, the Board
should differentiate among different types of
NLRA-protected activities (some of which
might be deemed central to the Act and others
regarded as more peripheral), and the Board
must recognize those instances where the risk of
intruding on NLRA rights is “comparatively
slight.”58
 The Board should make reasonable distinctions
among the justifications associated with a chal-
lenged policy, rule or handbook provision. The
justifications for rules dealing with discrimina-
tion, harassment, safety or security, for exam-
ple, might be afforded greater weight than those
for rules aimed at increasing sales or productivi-
ty. The Board should also make reasonable dis-
tinctions between and among different indus-
tries and work settings, and it should take into
consideration any specific events that might be
relevant to a particular policy, rule or handbook
provision.

57 The business justifications associated with a particular policy,
rule, or handbook provision may include, for example, non-NLRA legal
obligations such as the prevention of discrimination or harassment on
the basis of sex, race, age, disability, or other protected factors; the
avoidance of workplace violence; efforts to foster occupational safety
and health; the protection of trade secrets, intellectual property and
customer or client information; and a desire to foster respect, coopera-
tion and courtesy between and among employees (who work in increas-
ingly diverse work forces) or to promote these same qualities in deal-
ings with customers, clients, vendors, and the general public.
The Board’s balancing can appropriately consider factors such as the
immediacy and relative importance of particular Sec. 7 rights or a par-
ticular work requirement’s justification. For example, the Board might
reasonably invalidate a confidentiality requirement prohibiting disclo-
sure of employee wages (because the employer might lack any reason-
able justification for such a requirement, and concerted activity regard-
ing wages is central to the Act’s protection). Conversely, the Board
might uphold a requirement that employees treat one another with
courtesy and respect to the extent the Board concluded, for example,
that (i) substantial concerns existed about workplace harassment or
violence, and (ii) angry confrontations in the workplace, though some-
times protected by the Act, are not central to the Act’s protection.
58 NLRB v. Great Dane Trailers, 388 U.S. at 34.
 Even if the Board held an employer could law-
fully maintain a particular policy, rule or hand-
book provision, the Board may still find it un-
lawful to apply the rule in a situation involving
NLRA-protected activity. Therefore, if the
Board finds that an employer lawfully main-
tained a “courtesy and respect” rule, the Board
may still find that the employer violated Section
8(a)(1) of the Act by invoking the rule to disci-
pline employees involved in an angry workplace
confrontation that was protected by Section 7.59
Regarding this last point, the Court of Appeals for the D.C.
Circuit has criticized the Board’s failure to distinguish be-
tween the mere maintenance of a facially neutral rule, on the
one hand, and circumstances where a rule has been applied
to restrict Section 7 activity on the other.60 In the complex
assortment of work settings throughout the United States, a
near-endless variety of work requirements exist for im-
portant reasons. Many of these requirements are imposed
by statutes other than the NLRA. Some address legitimate
concerns about workplace violence. Others address the
need to ensure employee safety, or they express an under-
standable desire to foster courtesy among employees in
work forces that are increasingly diverse.
The Board needs to refrain from assuming that facially
neutral policies, work rules and handbook provisions
operate, first and foremost, to extinguish NLRA-
protected activity. Such an assumption is especially un-
warranted without evidence that a particular rule has
been applied to restrict Section 7 activity. In this regard,
the Board should take to heart criticism levied by the
D.C. Circuit nearly 15 years ago:
We cannot help but note that the NLRB is remarkably
indifferent to the concerns and sensitivity which
prompt many employers to adopt the sort of rule at is-

59 The appropriate remedy for such a violation would be an order to
cease and desist from applying the rule to restrict protected activity, not
to rescind the rule altogether. See Marina Del Rey Hospital, 363
NLRB No. 22, slip op. at 2 (2015).
60 Thus, in Aroostook County Regional Ophthalmology Center v.
NLRB, 81 F.3d at 213, the D.C. Circuit stated:
In the absence of any evidence that [the employer] is imposing an un-
reasonably broad interpretation of the rule upon employees, the
Board's determination to the contrary is unjustified. If an occasion
arises where [the employer] is attempting to use the rule as the basis
for imposing questionable restrictions upon employees' communica-
tions, the employees may seek review of the Company's actions at that
time. However, the rule on its face is not unlawful.
(Emphasis added.) See also Adtranz ABB Daimler-Benz Transporta-
tion v. NLRB, 253 F.3d at 28 (stating that the Board cannot find a fa-
cially neutral policy unlawful based upon “fanciful” speculation, and
the Board must “consider the context in which the rule was applied and
its actual impact on employees”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
sue here [prohibiting “abusive or threatening lan-
guage”]. Under both Federal and State law, employers
are subject to civil liability should they fail to maintain
a workplace free of racial, sexual, and other harass-
ment. Abusive language can constitute verbal harass-
ment triggering liability under State or Federal law.
Given this legal environment, any reasonably cautious
employer would consider adopting the sort of prophy-
lactic measure contained in the Adtranz employee
handbook. . . . Under current law, the only reliable pro-
tection is a zero-tolerance policy, one which prohibits
any statement that, when aggregated with other state-
ments, may lead to a hostile environment. . . . To bar,
or severely limit, an employer's ability to insulate itself
from such liability is to place it in a “catch 22.”61
The court continued:
We also recognize that the uneven or partial application
of a rule against abusive and threatening language
could constitute an unfair labor practice if directed
against employees seeking to exercise their statutory
rights. Yet the Board's position that the imposition of a
broad prophylactic rule against abusive and threaten-
ing language is unlawful on its face is simply prepos-
terous. It defies explanation that a law enacted to fa-
cilitate collective bargaining and protect employees'
right to organize prohibits employers from seeking to
maintain civility in the workplace.62
As a final matter, I respectfully disagree with my col-
leagues’ contention that I am advocating a “novel balanc-
ing test” that supposedly “puts a clear thumb on the scale
to tilt the balance against Section 7 rights.” Here, my
colleagues emphasize that the Board has applied Luther-
an Heritage “for more than a decade,” and they are “not
persuaded” that, throughout that period, “the Board and
the courts have been engaged in an analytical exercise
that is somehow contrary to the Act and Supreme Court
precedent.” My colleagues concede that cases implicat-
ing Lutheran Heritage may raise “difficult” and “com-
plicated” issues, but the majority insists these problems
are “inherent in the remarkable number, variety, and de-
tail of employer work rules . . . drafted with differing
degrees of skill and levels of legal sophistication.”
Most of my colleagues’ criticisms deal with matters
that have already been addressed, but I believe their ob-
servations are especially misplaced in three respects.
First, while arguing that I advocate a standard that
“puts a clear thumb on the scale to tilt the balance against

61 Adtranz ABB Daimler-Benz Transportation v. NLRB, 253 F.3d at
27 (internal quotations and citations omitted; emphasis added).
62 Id. at 27–28 (emphasis added).
Section 7 rights,” my colleagues disregard the fact that
the Lutheran Heritage “reasonably construe” standard
does not permit the use of any “scale,” and it does not
involve any “balance.” Under Lutheran Heritage, the
Board exclusively considers only the potential, hypothet-
ical impact of a particular rule on NLRA-protected activ-
ity, even though such activity may never occur, it may lie
at the periphery of the protection afforded by our statute,
and any adverse impact on Section 7 activity may be
substantially outweighed by compelling justifications.
Merely requiring the Board to “balance” these considera-
tions does not place a “thumb on the scale” in any direc-
tion.63
Second, the balancing standard described in this opin-
ion is not “novel.” Rather, the balancing of competing
interests—specifically, considering the potential impact
on NLRA-protected rights along with relevant justifica-
tions for particular requirements or restrictions—is man-
dated by the Supreme Court decisions in Republic Avia-

63 Nothing would prevent the Board, after engaging in an appropriate
balancing of justifications and NLRA rights, from concluding that a
facially neutral rule violates Sec. 8(a)(1), and such a finding would be
entitled to reasonable deference on appeal. See, e.g., Guardsmark, LLC
v. NLRB, 475 F.3d 369, 375–377 (D.C. Cir. 2007) (rejecting employ-
er’s argument that facially neutral rule is lawful because it was never
applied against protected activity). Indeed, the “balancing” required by
the Supreme Court’s decisions in Republic Aviation, Erie Resistor and
Great Dane mandates only that the Board consider business justifica-
tions (in addition to the impact of particular rules or requirements on
NLRA-protected activity). Moreover, even if the Board concluded that
a facially neutral rule could lawfully be maintained, the Board could
find that the same rule was subsequently unlawfully applied to restrict
or interfere with NLRA-protected activity. See text accompanying fns
87, supra; see also Aroostook County Regional Ophthalmology Center
v. NLRB, 81 F.3d at 213; Adtranz ABB Daimler-Benz Transportation,
N.A. v. NLRB, 253 F.3d at 28. In these respects, it would not unduly
restrict the Board or compel a particular outcome for the Board to en-
gage in the “balancing” that is required under Sec. 8(a)(1). The Board
would have greater flexibility and could undertake a more refined eval-
uation of facially neutral work rules, policies and handbook provisions
than is permitted by the current Lutheran Heritage standard.
Likewise, there is no merit in the majority’s suggestion that the “bal-
ancing” of competing interests would result in greater certainty and
stability only if “facial challenges to employer rules would rarely suc-
ceed,” and it is not true that such a balancing “would leave the potential
chilling effect of such rules on protected, concerted activity un-
addressed.” Again, an appropriate balancing of justifications and
NLRA rights would preserve the Board’s ability to conclude that vari-
ous facially neutral rules, policies or handbook provisions violate Sec.
8(a)(1). Although mere maintenance of various rules would still be
unlawful, greater certainty and stability would result from the Board’s
ability to consider relevant justifications and the impact on NLRA-
protected rights, and the Board could draw more understandable dis-
tinctions between different types of rules, justifications, work settings
and NLRA-protected rights. None of these distinctions is permitted
under the single-minded Lutheran Heritage “reasonably construe”
standard, which makes it predictable that divergent outcomes in multi-
ple cases would defy rational explanation and appear to be arbitrary.
See text accompanying fns.66–83, supra.
WILLIAM BEAUMONT HOSPITAL 21
tion,64 Erie Resistor65 and Great Dane66 and was con-
ducted by the Board itself in cases such as Peyton Pack-
ing Co. (decided in 1943),67 Stoddard-Quirk Manufactur-
ing Co. (decided in 1962),68 GTE Lenkurt, Inc. (decided
in 1973),69 Essex International (decided in 1974),70 Tri-
County Medical Center (decided in 1976),71 Our Way,
Inc. (decided in 1983),72 Lafayette Park Hotel (decided
in 1998),73 Caesar’s Palace (decided in 2001),74 and
Flagstaff Medical Center (decided in 2011),75 among
others. My colleagues get one thing right: Lutheran
Heritage has been in effect “for more than a decade.”
But this does not preclude a conclusion that Lutheran
Heritage is contrary to the Act and Supreme Court prec-
edent. In fact, as described at length above, Lutheran
Heritage constitutes an obvious and completely unex-
plained departure from the consideration of competing
interests that has been deemed necessary in numerous
cases decided by the Supreme Court, other courts and the
Board.76

64 324 U.S. at 797–798.
65 373 U.S. at 229.
66 388 U.S. at 33–34; see supra fn. 34.
67 49 NLRB at 843; see supra fn. 47.
68 138 NLRB at 621; see supra fn. 48.
69 204 NLRB at 921–922; see supra fn. 49.
70 211 NLRB at 749; see supra fn. 48.
71 222 NLRB at 1089; see supra fn. 49.
72 268 NLRB at 394; see supra fn. 48.
73 326 NLRB at 824; see supra fns. 45, 51 and accompanying text.
74 336 NLRB at 272; see supra fn. 52.
75 357 NLRB at 663; see supra fn. 54.
76 To support its view that the Board may continue to adhere to Lu-
theran Heritage and freely disregard the justifications underlying chal-
lenged work rules, the majority cites a single court case, NLRB v.
Northeastern Land Services, 645 F.3d 475 (1st Cir. 2011), where the
court upheld a Board order invalidating a confidentiality rule. The
court commented on the Lutheran Heritage “reasonably construe”
standard and stated that the Board “could have chosen to structure its
rule differently and engage in a balancing analysis.” Id. at 483. How-
ever, the court deferred to the Board’s failure to engage in “balancing,”
and it rejected the employer’s argument that “the Board failed to con-
sider the legitimate justification it had for the confidentiality provi-
sion.” Id. at 482–483. The court asserted that the employer’s argument
was “at odds with current Board precedent,” citing Lutheran Heritage
and Lafayette Park Hotel, and it stated that “[n]othing in Republic
Aviation compelled the Board to apply a balancing test here.” Id.
For several reasons, the decision in Northeastern Land Services does
not support the Board majority’s continued adherence to the Lutheran
Heritage “reasonably construe” standard. First, the court’s deference to
Lutheran Heritage—specifically, to the failure of that decision to per-
mit any “balancing” or consideration of the “legitimate justification”
underlying the rule at issue—is contrary to multiple Supreme Court
decisions, including Republic Aviation, Erie Resistor and Great Dane.
Second, the court engaged in no analysis of Republic Aviation and
provided no support for the erroneous statement that “[n]othing in
Republic Aviation compelled the Board to apply a balancing test.” 645
F.3d at 483. Third, although the court deferred to the Board’s failure to
permit “balancing” in Lutheran Heritage, the court misconstrued other
“current Board precedent” by failing to recognize that the Board en-
Third, the above considerations, especially when com-
bined with the Board’s practical experience applying
Lutheran Heritage, compel a conclusion that the Luther-
an Heritage “reasonably construe” standard has caused
enormous problems and needless uncertainty in this im-
portant area. It is no surprise that the Board, applying
Lutheran Heritage, has found that so many legitimate
work requirements violate Federal law: the Lutheran
Heritage “reasonably construe” standard does not permit
any consideration of the important reasons these work
requirements exist. In any event, even if my colleagues
disbelieve that Lutheran Heritage has created difficulties
in this area, this does not resolve the inconsistencies be-
tween Lutheran Heritage and the Supreme Court’s deci-
sions in Republic Aviation, Erie Resistor, and Great
Dane as well as numerous other Board and court deci-
sions, nor does it adequately address the other considera-
tions that warrant overruling the Lutheran Heritage “rea-
sonably construe” standard.
D. The Hospital’s Code of Conduct Provisions At Issue
Here Are Lawful Under Section 8(a)(1) of the Act
Applying the analysis outlined above, it remains to de-
termine whether the Hospital violated Section 8(a)(1) by
maintaining language in its Code of Conduct that
(i) prohibits conduct that impedes “harmonious interac-
tions and relationships” and (ii) prohibits “negative or
disparaging comments about the . . . professional capa-
bilities of an employee or physician to employees, physi-
cians, patients, or visitors.” This requires engaging in a
meaningful balancing of the competing interests associ-
ated with these rules, taking into account their justifica-
tions and any potential impact on NLRA-protected activ-
ities. For several reasons, I believe this analysis warrants
a conclusion that the Hospital did not violate the Act
based on the mere maintenance of the two rules at issue
here.
First, the unique characteristic of hospitals referenced
above—the integral connection between patient care and

gaged in balancing in Lafayette Park Hotel (cited in the court’s deci-
sion) and Caeser’s Palace (cited in the court’s decision and relied upon
in the administrative law judge’s decision reviewed by the Board and
court in Northeastern Land Services). Id. at 480, 482. Fourth, Luther-
an Heritage was a relatively recent case, issued after the judge’s deci-
sion and before the Board addressed the confidentiality rule in North-
eastern Land Services, and neither the Board nor the court had the
opportunity to consider the extensive confusion that has resulted from
Lutheran Heritage. Moreover, as noted above, the court in Northeast-
ern Land Services acknowledged that the Board “could have chosen to
. . . engage in a balancing analysis.” Id. at 483. Contrary to Northeast-
ern Land Services, I believe the Board is compelled to balance the
justifications for specific rules with the potential impact on NLRA-
protected rights. However, even if not required, I believe the Board
should engage in such an analysis for the reasons explained in this
opinion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
the hospital environment—strongly supports a conclu-
sion that substantial justifications warranted these rules.77
Second, the record establishes that this particular Hos-
pital had critical needs associated with the two work
rules. The Hospital experienced an unexpected death; an
investigation attributed the death, in part, to the lack of
coordination among Hospital staff and a failure to pro-
vide requested assistance; the Hospital received a sepa-
rate complaint that two nurses in the labor and delivery
unit (Antilla and Brandt) had engaged in “bullying and
intimidation”; the two nurses were fired for being
“mean,” “nasty,” “negative,” “intimidating” and/or “bul-
lying”; and my colleagues and I agree these discharges
were lawful. If ever there were a case where substantial,
immediate justifications existed for a rule seeking to
promote “harmonious interactions and relationships,”
this is it.78 And in view of these same facts—particularly
issues of liability in relation to an unexpected death—one
cannot reasonably doubt that legitimate purposes unrelat-
ed to NLRA-protected activity were served by the rule
against “negative or disparaging comments about the . . .
professional capabilities” of Hospital physicians and em-
ployees. It is also significant that the Code of Conduct
expressly sets forth the rationale underlying the Hospi-
tal’s rules by stating: “It is the intention of Beaumont

77 See NLRB v. Baptist Hospital, 442 U.S. at 783 fn. 12; St. John’s
Hospital, 222 NLRB at 1150.
78 See also Quality Patient Care in Labor and Delivery: A Call to
Action, which states: “Optimal maternal health outcomes can best be
achieved in an atmosphere of effective communication, shared deci-
sion-making, and teamwork,” and “[i]mproving safety . . . requires
teamwork and effective communication at multiple levels within the
organization.” Indeed, in this three-page statement, the phrase “effec-
tive communication” appears six times, and the words “team,” “teams,”
or “teamwork” appear a total of 28 times. See
http://www.acog.org//media/Departments/Patient-Safety-and-Quality-
Improvement/Call-to-Action-Paper.pdf?la=en.
In large part, my colleagues declare unlawful the Hospital’s rule re-
garding “harmonious” relationships based on 2 Sisters Food Group,
357 NLRB at 1816. For several reasons, I believe 2 Sisters does not
warrant a finding that the disputed work rules were unlawful. First, the
Board in 2 Sisters relied on Lutheran Heritage, and I believe Lutheran
Heritage should be overruled for the reasons discussed at length in the
text. Second, 2 Sisters involved a retail food store, not an acute care
hospital, which means the unique considerations associated with hospi-
tals, as recognized by the Board and the courts, were not present in 2
Sisters. Third, the rule invalidated in 2 Sisters subjected employees to
potential discipline for an “inability or unwillingness to work harmoni-
ously with other employees.” However, no facts in 2 Sisters remotely
resemble those in this case, including an unexpected death that was
revealed, in the ensuing investigation, to have resulted in part from the
lack of effective communication among hospital employees. It borders
on the absurd to suggest that these two situations are equivalent.
As explained in the text, the Lutheran Heritage standard prevents the
Board from taking into account the significant factual distinctions be-
tween 2 Sisters and the instant case, which is among the reasons that I
believe the Lutheran Heritage “reasonably construe” test should be
abandoned.
Hospitals to foster effective working relationships among
all hospital employees and physicians in order to provide
and maintain high quality and safe patient care” (em-
phasis added).
Third, the record establishes that the justifications as-
sociated with the two rules at issue here were substantial.
The justifications directly affected patients and employ-
ees alike, and breakdowns in the labor and delivery unit
had severe consequences. As noted previously, in Flag-
staff Medical Center, which also arose in a health care
work setting, the Board upheld a no-photography rule
based on the “weighty” privacy interests of patients and
the “significant interest in preventing the wrongful dis-
closure of individually identifiable health information,
including by unauthorized photography.”79 The instant
case—involving an unexpected death, two investigations,
the resignation and discharges described above—
implicates even greater concerns than the “weighty” in-
terests the Board deemed controlling in Flagstaff.
Fourth, it is also important to consider the potential
adverse impact of the Hospital’s Code of Conduct on
NLRA-protected activities. At some future time, an em-
ployee might engage in protected activity that could vio-
late one of the rules in dispute here. This could occur if
two employees engaged in concerted activities for mutu-
al aid or protection regarding an employment issue,
where the activities involved or precipitated some inter-
personal conflict in the workplace (contravening the rule
promoting “harmonious” interactions). Two or more
employees might similarly engage in protected concerted
activities in which the employees criticize the “profes-
sional capabilities” of a physician or coworker (con-
travening the rule prohibiting such comments). Howev-
er, weighed against the significant justifications de-
scribed above, I believe there is a “comparatively slight”
risk that such incidents would occur, especially in
comparision to the substantial benefits that the disputed
rules would produce for everyone in the hospital, includ-
ing patients and employees.80 A broad range of protected
Section 7 activities at the Hospital would not necessarily
involve any conflict with the two disputed rules. Most
importantly, in the event of such a conflict, if the Hospi-
tal were to apply either or both of the disputed work rules
to restrict Section 7 activity, the Board could still find
that the Hospital violated Section 8(a)(1), even if the two
rules at issue here were declared lawful on their face.
Finally, I do not believe a high risk exists that the two
disputed rules would be interpreted by employees to dis-
courage their exercise of NLRA-protected rights. Rather,

79 357 NLRB at 663.
80 NLRB v. Great Dane Trailers, Inc., 388 U.S. at 34.
WILLIAM BEAUMONT HOSPITAL 23
I agree with the judge’s conclusion that “a reasonable
reading of most of the rules shows they are unrelated to
and do not prohibit Section 7 activities,” and “a reasona-
ble employee would read the rules in the context of the
employment setting, a hospital, and understand the law-
ful purpose of the rules.”
Fifth, striking a “proper balance”81 between the justifi-
cations associated with the rules and the risk that they
might discourage Section 7 activity supports a finding
that maintenance of these rules is lawful. The justifica-
tions are substantial, and they are reinforced by the work
setting here (an acute care hospital) and by significant
events that directly implicated the rules. On the other
hand, the rules do not expressly prohibit Section 7 activi-
ty, and there is no evidence that they were adopted in
response to Section 7 activity or have been applied to
restrict such activity. The judge found it is unlikely that
employees would associate the rules with NLRA-
protected activity. It is also significant that the Board
unanimously finds lawful the discharges of employees
Antilla and Brandt based on misconduct that, like the
misconduct the rules seek to prevent, undermined patient
care. As the judge explained:
The hospital had experienced an unexpected infant
death, and this was found to be due, at least in part, to
nurses not cooperating with each other, not communi-
cating effectively with each other. If new or inexperi-
enced staff does not feel comfortable asking for assis-
tance or asking questions for fear of being mocked, or
humiliated, or yelled at, then there is indeed increased
risk to patients.
Conclusion
My colleagues indicate that no “link” exists between
“Board doctrine and the death of a baby.” It is true that
the Hospital promulgated the requirements at issue here,
notwithstanding Lutheran Heritage and its progeny, and
these requirements failed to prevent the tragic events
described above. However, the Board compounds this
failure by finding it violates Federal law for the Hospital
even to maintain a rule fostering “harmonious interac-
tions and relationships” or prohibiting “negative or dis-
paraging comments” about the “professional capabili-
ties” of doctors and coworkers. And Lutheran Heritage
prevents the Board from attaching any weight to justifi-
cations that—as illustrated by this case—can mean the
difference between life and death.
Unquestionably, Board doctrine has consequences af-
fecting far more than NLRA rights. Yet Lutheran Herit-
age imposes a form of blindness on the Board, requiring
that we ignore every important consequence associated

81 Id. at 3334.
with our decisions in this area, and with employment
policies, work rules and handbook provisions, except
their potential impact on the NLRA. This is contrary to
the balancing required by the Supreme Court in Republic
Aviation, Erie Resistor and Great Dane,82 and it disre-
gards the Supreme Court’s statement that “the Board has
not been commissioned to effectuate the policies of the
[Act] so single-mindedly that it may wholly ignore other
and equally important Congressional objectives.”83 In
other words, when Congress gave the Board responsibil-
ity to apply our statute to the “complexities of industrial
life,”84 it did not expect the Board to treat “complexities”
as if they do not exist.
In Adtranz ABB Daimler-Benz Transportation v.
NLRB, the D.C. Circuit stated that “America's working
men and women are as capable of discussing labor mat-
ters in intelligent and generally acceptable language as
those lawyers and government employees who now con-
descend to them.”85 The court sharply criticized the
Board’s treatment of rules promoting civility in the
workplace, and stated:
Under the Board's reasoning, every employer in the
United States that has a rule or handbook barring abu-
sive and threatening language from one employee to
another is now in violation of the NLRA, irrespective
of whether there has ever been any union organizing
activity at the company. This position is not “reasona-
bly defensible.” It is not even close. In the simplest
terms, it is preposterous that employees are incapable
of organizing a union or exercising their other statutory
rights under the NLRA without resort to abusive or
threatening language.86
As the instant case illustrates, not much has changed since
this criticism was levied against the Board.
I believe the Lutheran Heritage “reasonably construe”
standard should be overruled, and the Board must con-
duct a more refined examination of facially neutral work
requirements, taking into account the justifications asso-
ciated with particular rules in addition to any potential
impact on NLRA-protected conduct. The Board should
also develop more understandable guidelines based on
reasonable distinctions that are not permitted under Lu-
theran Heritage. In the instant case, this warrants a find-
ing that the Hospital did not violate Section 8(a)(1) by
maintaining rules promoting “harmonious interactions

82 Supra fn. 34. See also the text accompanying fns. 46–47supra.
83 Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942).
84 NLRB v. Erie Resistor Corp., 373 U.S. at 236; see also NLRB v. J.
Weingarten, Inc., 420 U.S. at 266–267.
85 253 F.3d at 26.
86 Id. at 25–26 (emphasis added).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
and relationships” and prohibiting “negative or disparag-
ing comments about the . . . professional capabilities of
an employee or physician . . . .”
Accordingly, as to these issues, I respectfully dissent.
Dated, Washington, D.C. April 13, 2016
______________________________________
Philip A. Miscimarra, 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 rules which employees would
reasonably construe to prohibit engaging in union or oth-
er protected concerted activities for purposes of collec-
tive bargaining or other mutual aid or protection, specifi-
cally the following portions of our Code of Conduct for
Surgical Services and Perianesthesia:
 The portion of the introductory paragraph
prohibiting conduct that “impedes harmoni-
ous interactions and relationships” (both as
maintained in the Code and as applied on Per-
formance Improvement Plan forms);
 The paragraph prohibiting “[v]erbal com-
ments or physical gestures directed at others
that exceed the bounds of fair criticism”;
 The paragraph prohibiting “[n]egative or dis-
paraging comments about the professional
capabilities of an employee or physician made
to employees, physicians, patients, or visi-
tors”;
 The prohibition on “[b]ehavior that is . . .
counter to promoting teamwork.”
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 portions of the Code of Conduct
for Surgical Services and Perianesthesia listed above, or
revise them to remove any language that prohibits or
may reasonably be read to prohibit you from engaging in
union or other protected concerted activities for purposes
of collective bargaining or other mutual aid or protection.
WE WILL notify you that those rules have been re-
scinded or, if they have been revised, provide you a copy
of the revised rules.
WILLIAM BEAUMONT HOSPITAL
The Board’s decision can be found at
www.nlrb.gov/case/07–CA–093885 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Darlene Haas Awada, Esq., for the General Counsel.
John P. Hancock, Jr., Esq. and Rebecca S. Davies, Esq. (Butzel
Long), for the Respondent.
DECISION
STATEMENT OF THE CASE
SUSAN A. FLYNN, Administrative Law Judge. This case was
tried in Detroit, Michigan, on May 14–16, 2013. The Charging
Party filed the charge on November 28, 2012, and the General
Counsel issued the complaint on March 28, 2013.
The complaint alleges that the Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act) by dis-
charging employees Jeri Antilla and DeAnna Brandt due to
their alleged protected concerted activities. The Respondent
filed an answer denying the essential allegations of the com-
plaint and raising affirmative defenses.
The General Counsel orally amended the complaint at the
beginning of the trial alleging that the Respondent, through its
agent, Anne Ronk, orally promulgated an overly broad rule
prohibiting employees from talking with other employees re-
garding an investigation into alleged misconduct. The General
WILLIAM BEAUMONT HOSPITAL 25
Counsel again orally amended the complaint during the second
day of trial alleging that the Respondent promulgated and main-
tained the Code of Conduct for Surgical Services and
Perianesthesia that includes rules that are overly broad and
which employees would reasonably construe as discouraging
Section 7 activities. The General Counsel asserts these actions
also violate Section 8(a)(1) of the Act. The Respondent denies
that the allegations constitute violations of the Act and further
contends that the allegation pertaining to the Code of Conduct
was untimely raised.
After the trial, the parties filed briefs, which I have read and
considered. Based on the entire record in this case, including
the testimony of the witnesses and my observation of their de-
meanor, I make the following
FINDINGS OF FACT
JURISDICTION
The Respondent operates a hospital in Royal Oak, Michigan.
During a representative 1-year period, the Respondent derived
gross annual revenue in excess of $100,000, and purchased and
received goods and materials valued in excess of $5000 directly
from suppliers located outside the State of Michigan. Accord-
ingly, I find, and Respondent admits, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The Respondent also admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent operates several hospitals including one in
Royal Oak, Michigan, that includes a Family Birth Center
(FBC). The hospital CEO is Shane Cerone; the hospital admin-
istrator is Maureen Bowman; the human resources representa-
tive is Amy Giannosa. In the Family Birth Center, the director
of Women, Children and Psychiatric Services (Maternal Child
Health) is Anne Ronk. She supervises the Nurse Manager, Pa-
tricia Knudsen, who has 24/7 responsibility for operations.
Knudsen supervises the two associate nurse managers: Alissa
Amlin (afternoon shift) and Tonyie Andrews-Johnson (mid-
night shift).
The Family Birth Center includes 20–21 labor/delivery beds,
9 triage beds, and 4 operating rooms (ORs). In the event of a
problem, the newborn would be sent to the newborn intensive
care unit (NICU). The Charging Party, Jeri Antilla, is a Regis-
tered Nurse (RN); DeAnna Brandt is a certified surgical techni-
cian. Both worked in the FBC although Brandt also worked at
times in the Children’s Surgery Center.
The employees of the Respondent’s hospitals, including Wil-
liam Beaumont Hospital in Royal Oak, are not unionized.
B. Code of Conduct
Since at least October 9, 2009, the Respondent has main-
tained a Code of Conduct for Surgical Services and
Perianesthesia, which has been distributed to employees. (R.
Exh. 6.)
The Code reads as follows, in pertinent part:
Conduct on the part of a Beaumont employee or physician
that is inappropriate or detrimental to patient care of [sic]
Hospital operation or that impedes harmonious interactions
and relationships will not be tolerated. Transgressors shall be
subject to appropriate remedial or corrective action. Improper
conduct or inappropriate behavior or defiance in the following
example [sic], which includes but not limited [sic] to the fol-
lowing:
Willful and intentional threats, intimidation, harassment, hu-
miliation, or coercion of employees, physicians, patients, or
visitors.
Profane and abusive language directed at employees, physi-
cians, patients or visitors.
Behavior that is rude, condescending or otherwise socially
unacceptable. Intentional misrepresentation of information.
Verbal comments or physical gestures directed at others that
exceed the bounds of fair criticism.
. . . Negative or disparaging comments about the moral char-
acter or professional capabilities of an employee or physician
made to employees, physicians, patients, or visitors.
. . . . Behavior that is disruptive to maintaining a safe and
healing environment or that is counter to promoting team-
work.
C. Working Conditions
The nursing staff works on two shifts: days and nights. The
weekend night shift (referred to as midnights) generally works
from 7 p.m. to 7 a.m., on Friday, Saturday, and Sunday nights.
There is a charge nurse1 on duty on midnights but there is rare-
ly any manager on duty on midnights, although occasionally
Andrews-Johnson works Sunday nights. On an average night,
there may be 9 to 12 nurses on duty, with a total of approxi-
mately 30 nurses assigned to the night shift. (Tr. 603, 604,
653.)
Nurses may transfer between shifts when a position becomes
vacant. In such instances, management calls and offers the
position to the most senior nurse on the other shift, who could
accept or decline. Most nurses prefer the day shift, so experi-
enced nurses are pulled from the night shift to the day shift, and
their slots filled by newer, less experienced nurses. New nurses
would only be assigned one patient, while the more experi-
enced nurses may be responsible for two or three. Thus, experi-
enced nurses are expected to handle their own patients, as well
as assist the less experienced nurses in performing their duties,
which causes stress among the nursing staff. In addition, the
midnight shift was chronically understaffed at the relevant time
period, although the reasons for that are unclear. (Tr. 510, 515–
516, 517.)
It is the hospital’s practice to assign preceptors (experienced
nurses) to mentor new nurses. The new nurse shadows the pre-
ceptor and gradually begins performing tasks herself, as she
becomes more confident. The period of orientation lasts a min-
imum of 12 weeks.
D. Response to a Sentinel Event
In December 2011, a “sentinel event” occurred. A sentinel

1 Charge nurses are not supervisors.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
event is defined as a serious incident; in this case, a newborn
died unexpectedly. An investigation was conducted and it was
determined there were numerous reasons for the child’s death.
Among those reasons were lack of communication between
nursing staff especially during handoffs (when nurses changed
shifts) and failure to provide assistance when requested by a
nurse. A 4-hour mandatory training session was then presented
on four dates in January and February 2012, attempting to ad-
dress the problems identified in order to ensure there was no
recurrence, with a focus on communication.
On March 5, 2012, the hospital CEO, Shane Cerone, went to
the midnight shift and met individually with several nurses,
seeking feedback and input about the work environment. (R.
Exh. 16.) Neither Antilla nor Brandt spoke to Cerone.
The following week, one nurse was added 7 nights a week
(the equivalent of three nurses) despite no budgeting for such
positions, based on the nurses’ complaints about inadequate
staffing. (Tr. 535.) Later that year, in the summer, additional
nurses were hired, approximately 16 in total. Most were gradu-
ate nurses, with no experience; a few had some experience but
not in labor and delivery. Two new nurses, Dusta Dukic and
Nadia Futalo, began on the midnight shift and did their orienta-
tion on that shift; the others received orientation on the day
shift, then transitioned to the midnight shift by September 2012.
Thus, at the relevant time period, on an average midnight shift,
most of the RNs had little experience.
E. Protected Concerted Activity
Many nurses complained to each other about the problems
on the midnight shift, especially understaffing and the effects of
having a large number of inexperienced or less experienced
nurses on that shift, causing a heavier burden to fall on the
more experienced nurses. They also felt the situation was un-
safe for the patients, and some had concerns about the possibil-
ity of losing their nursing licenses if they were held responsible
for an error committed by a new nurse on one of their patients.
The Charging Party, Antilla, was one of the nurses who
would discuss these issues and complain about problems on the
midnight shift. (Tr. 191.) Those discussions often occurred at
the nursing station, but sometimes also occurred in the patients’
rooms. Antilla testified that she also talked to Amlin about one
of the new nurses, Dusta Kukic, after she had precepted her.
That feedback was in response to an email from Amlin asking
about a particular incident. (GC Exh. 9.) Antilla also said that
she had commented to Andrews-Johnson that Andrews-
Johnson had scheduled a new nurse for triage when an experi-
enced nurse was needed. Neither of those instances involved
concerted activity.
DeAnna Brandt was a surgical technician, and therefore was
usually in the OR. However, she, too, discussed the problems
of understaffing and inexperienced nurses with nurses. (Tr.
246–247.) In addition, she raised concerns about performance
deficiencies with the charge nurses. Brandt testified that she
brought such concerns to the charge nurses almost nightly, that
she did not characterize as complaints but rather as areas she
noted where the nurses needed improvement or extra guidance.
She said she also reported back to preceptors about new nurses’
performance.
Brandt testified that she did not have the opportunity to talk
to Andrews-Johnson about her concerns because Andrews-
Johnson was rarely on duty on midnights (Tr. 297–298, 325–
326). However, she did testify to a meeting they had on April
16, 2012, when she was issued her performance evaluation.
Brandt added written comments regarding a nurse named Mag-
gie and her being unfamiliar with Surgiflo or how to do sponge
counts; that newer nurses were unfamiliar with surgical instru-
ments; and that charge nurses sometimes did not call her to
open an OR before the patient was brought in. (GC Exh. 18.)
Brandt said that Andrews-Johnson did not read those written
comments. (Tr. 242.) Brandt testified that she had raised simi-
lar concerns with Ronk when Ronk had come to the floor to
discuss renovations, although Ronk had told her she was not
there to discuss such issues, just the renovations. (Tr. 241–
242.)
Lori Post, an RN, testified that she engaged in discussions
about short staffing and the inexperienced nurses. (Tr. 74–75,
88–89.) She was unaware whether anyone raised these con-
cerns with management; she did not, other than talking to
Cerone earlier, in March 2012. She had told him the unit was
unsafe due to short staffing, and that she believed “something”
was going to happen. Post felt that, since Diane Glinski had
been fired (ostensibly for bullying)2 approximately 2 weeks
after she had spoken to Cerone, most nurses then “clammed up”
around management for fear of retaliation.
F. Management Awareness of Protected Concerted Activity
Ronk was unaware of these discussions amongst staff about
new nurses and safety concerns. (Tr. 514–515, 536.)
Andrews-Johnson was aware that Antilla and Brandt talked
to other nurses about staffing and safety issues working with
the new nurses. (Tr. 587–589.) Some of the nurses came to her
with their concerns, which she encouraged, so the matters could
be addressed. (Tr. 588.)
G. New Nurse’s Resignation
One of the new nurses, Tina Wadie, failed to report for duty
on October 22, 2012. She called out sick that day, then sent an
email on October 23, 2012, to Amlin, Andrews-Johnson, and
Lindsay Decker, clinical nurse specialist. In it, she stated that
she would not be returning to work although this was her
“dream job,” since she seemed not to be well-suited for the job
and due to bullying and intimidation by unnamed senior nurses.
(R. Exh. 9.) Andrews-Johnson forwarded the email to HR and
the clinical nurse specialist. (Tr. 573–574.)
This situation concerned management. Ronk felt that Wadie
was considered the best qualified of the new hires, and she
expected the more experienced nurses to help, not intimidate
and drive away, the newer nurses. (Tr. 539.) Andrews-Johnson
was concerned that Wadie quit her dream job, without notice,
and that Wadie said it made her ill to think about coming to
work. (Tr. 574.) The allegations Wadie made in her email,
such as the statement about the “right way” and the “night way”

2 The record shows that Glinski was not in fact fired. She resigned
after being confronted about misbehavior (including showing photos of
a deceased infant). There were no allegations of bullying against her.
(Tr. 520, 567; GC Exh. 25 (g).
WILLIAM BEAUMONT HOSPITAL 27
of doing things and the need to move patients on within 1 hour,
suggested that proper procedures were not being followed on
midnights or were being rushed. (Tr. 575–576.)
On October 24, Giannosa was asked by her boss, Mike Dix-
on, director of human resources, to conduct an exit interview
with Wadie. She was directed to ask whether Wadie would be
willing to talk to hospital recruiters about taking a position in
another unit. Wadie agreed and returned to work.
Giannosa talked to Wadie on at least one other occasion, and
Wadie named four employees as problems: Antilla, Brandt,
Post, and Michele Wonch. (R. Exh.10; GC Exh. 27.) Wadie
told Giannosa that Brandt was nasty, huffy, not nice at all, be-
littling about everything, sarcastic, condescending, rolling eyes,
and made negative comments no matter what you do. Wadie
reported that Antilla said there is a “night way” of doing things,
sat around a lot and complained about the unit, other new nurs-
es say she is a bully. Tiffany (last name not reported), Antilla,
and Post made comments about new nurses and about their
nursing licenses.
After speaking with Wadie, Giannosa sent an email to
Alonzo Lewis, VP of Maternal Child Health and Women’s
Health, Bowman, Ronk, Amlin, and Andrews-Johnson, as well
as Dixon, Jennifer Mattucci, employment manager, and three
recruiters: Marilyn Koski, Laura Velzy, and April Hornyak,
advising them of certain issues raised by Wadie and that the
concerns would be addressed. (GC Exh. 26.)
H. Investigation
Based on Wadie’s statements to her, Giannosa decided to
proceed with an investigation.
Then, on October 26, the situation was discussed at a meet-
ing attended by Giannosa, Ronk, Andrews-Johnson, and Amlin;
Knudsen was present by telephone (as she was out on extended
sick leave). A plan of action was agreed to, that is, that an in-
vestigation would be conducted. (Tr. 578–580.) Giannosa as-
signed that responsibility to Andrews-Johnson, as the first-line
supervisor. She was to talk to the newer nurses about their ex-
perience on the midnight shift, without mentioning any individ-
uals’ names. These were to be open-ended conversations to see
if the nurses raised any concerns. (Tr. 538, 540–541.) Giannosa
testified that Andrews-Johnson was to interview a random se-
lection from among the nurses hired in the past couple of years.
Andrews-Johnson took notes of each interview and then sent
emails to the management group, summarizing the discussion
following each one. (R. Exh. 13; Tr. 580.)
At their October 31 meeting, the group reviewed the inter-
view notes that Andrews-Johnson had gathered to date. A pre-
liminary consensus was reached based on the feedback received
to date that two employees (Antilla and Brandt) should be ter-
minated and two (Post and Wonch) counseled. (R. Exh. 11; Tr.
541–542, 566.) Andrews-Johnson continued to conduct inter-
views thereafter.
I. Initial Meeting with Brandt and Nondiscussion Order Given
Initial meetings were held with Antilla and Brandt, to advise
them of the nature of the charges against them and provide
them the opportunity to reply or to resign before disciplinary
action was taken. Ronk met with Brandt, and Andrews-Johnson
and Amlin met with Antilla.
On November 2, Amlin told Brandt to see Ronk. Brandt tes-
tified that Ronk told her that a nurse had quit and said that
Brandt had been mean, nasty, and rude to her, and that an in-
vestigation would be conducted. She said Wadie as well as
other new nurses had named her as nasty and rude. Ronk in-
quired whether she had taken any communication classes, and
Brandt said she had not. Ronk encouraged her to take some,
and said the hospital would pay her for her time in the classes.
Ronk further told Brandt to think about her actions and the
situation, and that they would talk again after the investigation.
Brandt said she was concerned that she might be fired and felt
she needed to consult an attorney; Ronk replied that she was
not allowed to discuss this with anyone, not even an attorney,
as this was hospital business. (Tr. 257, 550; GC Exh. 34.)
Ronk, however, testified that she instructed Brandt not to dis-
cuss the matter with anyone on the unit. (Tr. 550.) I find Ronk
more credible than Brandt regarding their conversation, and
specifically regarding the nondiscussion instruction. First, Ronk
made contemporaneous notes of the conversation. Second, from
those notes it is clear that Ronk made the remark in response to
Brandt’s statement that she would be approaching the new
nurses that weekend to introduce herself and offer any assis-
tance they might want.
Brandt did not discuss the matter with anyone. Ronk admit-
ted in her testimony that she did advise Brandt not to discuss
the matter with anyone on staff, as the matter was still under
investigation and she was concerned (given the nature of the
complaints against Brandt) that such discussions may result in
additional allegations of intimidation. Ronk’s notes of the meet-
ing confirm that she instructed Brandt not to discuss the meet-
ing with anyone else in the unit (GC Exh. 34).
Brandt later sent Ronk emails indicating that she had regis-
tered for classes and that she had applied for other positions at
the hospital, outside the FBC. (GC Exhs. 19, 20.)
J. Initial Meeting with Antilla
On November 5, Antilla was asked to meet with Andrews-
Johnson and Amlin. She was told that her name had been
brought up by a few nurses as being negative, about making
comments about her nursing license being on the line and other
remarks about new staff, and how she felt new nurses shouldn’t
be working in labor and delivery. Andrews-Johnson asked
Antilla for her side, and Antilla agreed that she had made the
three remarks. She said she had expressed concerns about not
just her license, but other nurses’ nursing licenses. She noted
that previously, nurses had been required to have 1–2 years’
experience before being assigned to labor and delivery, which
was a specialty area, and that longer training periods (orienta-
tion) or a nurse residency program would be advisable. She
was told that her negativity could be construed as intimidating
and bullying, that she had been negative in early 2012 but had
improved, and now was being negative again. She was told the
reports of her negativity came from new nurses, but no names
were revealed. Ultimately, Antilla was encouraged to prepare a
reply, and that HR would call her after the investigation was
conducted. (R. Exh. 25.)
After meeting with Antilla, Andrews-Johnson reported to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
Giannosa, Ronk, and Amlin what had transpired. (Tr. 585.)
K. Decisions to Discipline
Ronk testified that decisions to discipline were made by
management and HR. In this instance, the final decisions were
made at a meeting on November 8, by Ronk, Knudsen, and
Giannosa, with any input from Andrews-Johnson and Amlin.
The decision to terminate Antilla and Brandt was based on the
statements provided by a number of staff nurses in the course of
Andrews-Johnson’s investigation, as well as the statements by
Wadie. Those statements were accepted as true.
Hospital policy provided that progressive discipline was not
required when the infraction was serious, including improper
conduct. (R. Exh. 14.) Giannosa testified that Antilla and
Brandt’s behavior was severe enough to warrant termination
because it was a safety concern, as bullying affected the nurses’
interactions with each other, discouraged nurses from request-
ing assistance, and had contributed to the sentinel event of De-
cember 2011. (Tr. 453–454, 465–466.) Ronk testified that
bullying and intimidating behavior has no place in a labor and
delivery setting where teamwork is critical. Such behavior “im-
pedes communication, open communication, staff feeling free
to ask questions, ask for help, and that can put a patient’s safety
at risk.” (Tr. 544.)
Although there was no specific testimony as to which man-
ager drafted the basic termination language, it would appear
that it was Andrews-Johnson, as the first-line supervisor and
the individual who conducted the investigations. She did review
the termination documents with Giannosa. (Tr. 39–40, 472.)
Giannosa edited and added to them, specifically adding lan-
guage under the form’s future expectations section, as per hos-
pital policy, then returned them to management for review. (GC
Exhs. 4, 5; Tr. 41–42, 48, 472, 475.) The documents were
signed by all necessary parties and issued to Antilla and Brandt.
Brandt was fired for exhibiting mean, nasty, intimidating,
and bullying behavior. (Tr. 472; GC Exh. 5.)
Antilla was fired for exhibiting negative, intimidating, and
bullying behavior. (Tr. 475; GC Exh. 4.)
Two nurses, Lori Post and Michele Wonch, were counseled.
Neither was terminated because their conduct was not as severe
as Antilla and Brandt’s. Andrews-Johnson counseled Post;
Knudsen was supposed to counsel Wonch. (Tr. 583, 605.)
There is a memo in Post’s file documenting that counseling but
there is none in Wonch’s file. (GC Exh. 25 j.) That counseling
should have been conducted by Knudsen, as determined by the
management group.3
L. Issuance of the Discipline
1. Termination of Brandt
On November 8, Brandt was called to a meeting with Ronk,
Andrews-Johnson, and Amlin. She was advised that her em-
ployment was being terminated and she was given the papers to
read. (GC Exh. 5.) At the bottom, under background and related

3 While it is possible that either the counseling did not occur or that
the documentation was not completed due to Knudsen being out on
extended medical leave, such is pure speculation as there was no testi-
mony on this point and there is no documentation that it ever occurred.
(GC Exh. 25.)
information, counselings from August 2006 and June 20114
were noted. Brandt refused to sign the termination but received
a copy. She testified that Ronk explained the Respondent’s
internal grievance process to her, but said that Bowman, who
had signed off on the termination, would be the step 1 deciding
official. She also said that Ronk said, “Good luck with that.”
Ronk denied making such remarks about Bowman or step 1.
(Tr. 546.) Ronk testified that the meeting lasted approximately
5 minutes as Brandt asked no questions. (Tr. 546, 552.) An-
drews-Johnson testified that Brandt said nothing, that Ronk did
all the talking, reviewing the termination papers with Brandt.
Andrews-Johnson corroborated Ronk’s testimony that she did
not make such reference to Bowman and the grievance proce-
dure. (Tr. 582.) She agreed that the meeting was very short.
Brandt testified that she was not asked for her side of events.
She never submitted a written reply to the charges.
Brandt did not file a grievance. She testified that she was not
familiar with the grievance process, so she looked it up online
but did not ask HR or anyone else any questions about it. She
noted that there was a right of appeal to a panel after the first
step. Nonetheless, she did not pursue her grievance rights.
I accept and credit the testimony of Ronk and Andrews-
Johnson over that of Brandt. Brandt’s testimony regarding
looking up the grievance process online supports Ronk and
Andrews-Johnson. Brandt may have felt that pursuing a griev-
ance was pointless under the circumstances, but that was her
perception, and not based on any attempts by management to
discourage her.
2. Termination of Antilla
On November 9, Ronk asked to see Antilla before she began
her shift. Antilla met with Ronk and Andrews-Johnson. Ronk
told her that, in light of the investigation findings, she was be-
ing fired as the ringleader of negativity on the unit. Ronk said
her name had been brought up, in a letter from a nurse who
recently quit and in discussions with nursing staff, as being
intimidating and bullying.
Antilla then explained the stepstool incident to Ronk, that
there had not been a stepstool in the room when it appeared it
would be needed for a particular delivery, and that afterward,
she told the new nurse that she needed to ensure that each de-
livery room had a stepstool, bag, and mask in case of emergen-
cy. She had then gone to the nurses’ station and repeated this.
Antilla denied making any statement about the “right way”
and the “night way.” She also denied saying she hated to work
weekends with so many new nurses, since that was her pre-

4 Brandt testified that she had no knowledge of an August 2006
counseling. However, in June 2011, she was written up for a Facebook
posting. (GC Exhs. 16, 17.) Brandt had complained on Facebook about
working nine shifts, plus covering for other surgical technicians. Ronk
told her that she appreciated her hard work but that if she had a problem
with someone, she should confront that person rather than post negative
comments about the hospital on the internet. At that meeting, Brandt
noted some safety concerns in the OR, such as when a nurse did not
understand that she had contaminated the sterile field, as well as com-
plaining about the lack of bathroom breaks during a 12-hour shift. Ronk
had said she would address those concerns, and apparently did so.
Brandt later sent Ronk an email saying she had gotten her breaks and
indicating that all was well. (R. Exhs. 7, 8.)
WILLIAM BEAUMONT HOSPITAL 29
ferred shift, for family reasons.5
Ronk then told her the hospital had a zero tolerance for bul-
lying and intimidation, and that, therefore, she was being fired.
Antilla then presented the reply letter that Amlin had encour-
aged her to write. (GC Exh. 12.) Ronk collected her badge,
gave her Giannosa’s phone number, and reviewed the grievance
process with her.
Antilla filed a grievance. In her grievance, Antilla had indi-
cated that she felt the problem was a personality conflict, that
her statements were taken out of context, and that she had a
good relationship with Wadie, as reflected in Wadie’s Face-
book posting. (GC Exh. 10.) She met with Ronk, Bowman, and
Giannosa for step 1. She lost at the first step, so she filed an
appeal to the panel, but lost that as well. She then filed the in-
stant unfair labor practice charge.
III. LEGAL STANDARDS AND ANALYSIS
A. Terminations
The discipline or discharge of an employee violates Section
8(a)(1) of the Act if the employee was engaged in activity that
is “concerted” within the meaning of Section 7 of the Act, the
employer knew of the concerted nature of the employee’s activ-
ity, the concerted activity was protected by the Act, and the
discharge was motivated by the employee’s protected concerted
activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir 1981), cert denied 455 U.S. 989 (1982); Correc-
tional Medical Services, 356 NLRB 277, 278 (2010); Naomi
Knitting Plant, 328 NLRB 1279, 1281 (1999) (quoting FPC
Holdings, Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995), enfd.
314 NLRB 1169 (1994). If the General Counsel makes such an
initial showing of discrimination, then the Respondent may
overcome that inference by presenting evidence demonstrating
that it would have taken the same action even in the absence of
the employee’s protected activity. See Timekeeping Systems,
Inc., 323 NLRB 244, 244 (1997); Williamette Industries, 341
NLRB 560, 563 (2004).
Both Antilla and Brandt did routinely and frequently com-
plain to peers about working conditions, such as understaffing
on the midnight shift, and the problems associated with work-
ing with inexperienced nurses—additional burdens on the sen-
ior staff, risks to the patients, and the potential for losing nurs-
ing licenses. It is arguable whether these discussions in them-
selves initially constituted protected concerted activity, as there
was no evidence whatsoever presented that any employee
planned to take any action based upon those complaints and
there was no concerted purpose, it was mere complaining.
While Antilla testified that she “found her passion” in advocat-
ing for new nurses and obtaining longer orientation periods for
them, it was established that she did not take any action in that
direction with management, except in one conversation when
she stated that she felt orientation periods should be longer.
Ronk was initially not aware that staff, and specifically
Antilla and Brandt, engaged in such discussions or other pro-
tected concerted activity until it was revealed in the course of

5 She did not address the statement that she hated working with the
new nurses, just that part of the statement pertaining to working week-
ends.
the investigation into the bullying allegations.6 However, An-
drews-Johnson had been aware of those discussions, and that
Antilla and Brandt engaged in them. Some nurses brought their
concerns directly to Andrews-Johnson and she encouraged
them to do so. However, Andrews-Johnson noted in her inves-
tigation interview notes the complaints raised by Antilla and
Brandt and others, as reported by the interviewees. The other
members of the management team, including Giannosa, learned
of the complaints through Andrews-Johnson’s interview notes.
Subsequent to their gaining knowledge of the protected activity,
management decided to terminate both Antilla and Brandt.
Thus, the General Counsel has met her burden.
However, I find that the Respondent has established that
both Antilla and Brandt would have been terminated absent
their protected activity.
First, while not determinative, it has been established that
other nurses who likewise engaged in similar discussions com-
plaining about working conditions, were not terminated. Most
nurses engaged in those conversations and several names were
raised in Andrews-Johnson’s investigation. Of the four who
were deemed the primary offenders, only Antilla and Brandt
were terminated. Post was only counseled. While there is no
evidence that Wonch was in fact counseled as the management
team agreed, that is immaterial, since the decision had clearly
been made by the team to counsel her, and not to terminate her.
Second, management witnesses credibly testified, and both
Antilla and Brandt agreed, that management did not discourage
such conversations among the staff.
Third, the reasons that management has given for the termi-
nations are significant and credible, and were sufficient to justi-
fy the terminations. The alleged misconduct must be viewed in
context. The General Counsel chooses to interpret the allega-
tions of negativity as directed toward protected concerted activ-
ity. I disagree. The hospital had experienced an unexpected
infant death, and this was found to be due, at least in part, to
nurses not cooperating with each other, not communicating
effectively with each other. If new or inexperienced staff does
not feel comfortable asking for assistance or asking questions
for fear of being mocked, or humiliated, or yelled at, then there
is indeed increased risk to patients. Whether one characterizes
the conduct as bullying or negative or demeaning is immaterial;
it is the underlying conduct that is at issue, not the characteriza-
tion.
Knudsen testified to being advised of bullying problems
within her first month in her current job, in October 2011. (R.
Exhs. 26, 27, 28.) An environmental survey (culture of safety
survey) was then conducted. (Tr. 611, 615–618; R. Exh. 29.)
Knudsen characterized negative behavior as intimidation,
mocking, excessive criticism, hoarding knowledge; and behav-
iors that are not conducive to a safe environment. (Tr. 618.)
Because of her concern about the staff comments in response to
the survey, Knudsen felt that teambuilding and other training

6 Brandt emailed Ronk a document (comments) that Brandt had
wanted attached to her performance appraisal the prior year. Ronk
testified that she never read those comments, as the decision to termi-
nate her employment was made at approximately the same time, so she
had no reason to read the document. (Tr. 552–553.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
was in order. (Tr. 619.) However, the sentinel event occurred
while the initial planning was taking place, that altered the
strategy. (Tr. 61; R. Exh. 31.) The ensuing investigation into
the sentinal event showed that communication, handoffs, and
interpretation of fetal tracing, were significant contributing
factors. (Tr. 621.) Therefore, a 4-hour mandatory training, or
safety symposium, was presented for the nurses, to address
those issues. (Tr. 622; R. Exhs. 30, 32, 33, 34, 36, 37, 38.) It
was offered four times in January and February 2012.
Four culture of safety surveys were conducted in 2012, to see
whether any progress had been made. (Tr. 634.) Several
methods were available for staff to report concerns to manage-
ment. (Tr. 639, 642.)
Then, despite these efforts, in October 2012, Wadie quit her
job and gave, as one of the reasons, the treatment of her by
other staff.
The management team accepted as true the statements made
by the nurses to Andrews-Johnson. Those nurses had no reason
to fabricate their reports, and their reports were consistent.
Brandt was fired for exhibiting mean, nasty, intimidating,
and bullying behavior. (Tr. 472; GC Exh. 5.) Antilla was fired
for exhibiting negative, intimidating, and bullying behavior.
(Tr. 475; GC Exh. 4.) Giannosa credibly explained that nega-
tive behavior meant the negative attitude exhibited toward the
new nurses, belittling, condescending, and demeaning behavior.
(Tr. 475.) That is entirely distinct from complaining about
working conditions.
Both Antilla and Brandt were terminated due to inappropri-
ate conduct toward other employees, having nothing whatever
to do with workplace grievances. They failed to interact with
other staff in a professional manner, that was part of the cause
for Wadie’s resignation, and were uncooperative with other
staff, worsening the situation about which they were purported-
ly so concerned. Neither Antilla nor Brandt acknowledged any
awareness of the effect of their behavior and comments on the
new nurses.
I accept and credit Ronk’s testimony. Ronk testified that
when she became aware in October/ November 2012 that
Antilla was discussing concerns about staffing with other staff,
the fact that she was engaging in such discussions was not of
concern to her. (Tr. 514, 536–537.) In fact, the hospital en-
couraged such discussions. Ronk testified that she would not
consider it a problem for staff to discuss these concerns, but
that it would be a concern to her as a manager if staff had con-
cerns, because she would want to know about and address or
remedy those concerns. (Tr. 515, 536.) Rather, Ronk testified
that Antilla and Brandt were terminated because there is no
place for bullying and intimidating behavior in a setting such as
labor and delivery where teamwork is critical. (Tr. 544.) It
impedes open communication, the freedom to ask questions, or
to ask for help that can put a patient’s safety at risk. (Tr. 544.)
This had been made evident in the investigation into the De-
cember 2011 sentinel event.
I accept and credit Andrews-Johnson’s testimony that the on-
ly things that were considered when making her decision to
terminate the two were Wadie’s feedback and the input from
other new nurses from her investigation. (Tr. 586.) The fact
that Antilla and Brandt had discussed their concerns with each
other, with her, or with other nurses was not a factor in the
decision to termination their employment (Tr. 588–589).
Most of the concerns raised by the nurses were well known
to management.7 Management agreed that there were problems
with understaffing, and hired more nurses. They were aware
that new nurses needed training, and expected the senior staff to
assist them during and after their orientation periods. The only
area where management was not in agreement with the nurses’
concerns was about the risk of losing their nursing licenses due
to a mistake by another nurse. However, I find that expressing
that misplaced fear was not a factor in the decisions to termi-
nate Antilla and Brandt, and that they would have been termi-
nated even in the absence of making such statements.
The General Counsel notes that at least one employee who
complained about the conduct at issue felt that “it wasn’t really
bullying.” That is of no consequence. As I stated above, the
characterization of the conduct is not important; it is the con-
duct itself that is important.
The General Counsel asserts that the allegations were too
vague and that neither Antilla nor Brandt could fairly respond
without further details. However, they were given descriptions
of the conduct and statements at issue, and were given the op-
portunity to ask questions. Brandt asked no questions and did
not file a grievance, electing not to present a defense. Antilla
did respond in writing to the charges, and did file a grievance,
although her efforts were unsuccessful.
The General Counsel makes much of Antilla’s good perfor-
mance and of the positive Facebook comments, and of Brandt’s
good performance as well, all of which are immaterial since the
terminations were not based on performance, but on conduct.
The management team looked at their performance but it did
not outweigh the misconduct. It appears that Antilla exhibited a
very different attitude toward the new nurses when they were
coworkers than when she was acting as charge nurse or precep-
tor. And, as the record establishes, other senior nurses were
more hostile to the new nurses when Antilla was around than
they were otherwise. Therefore, she was characterized as the
ringleader. It had nothing to do with her complaints about
working conditions. There is no dispute that Antilla was an
excellent nurse; that fact was recognized by management who
used her as a preceptor and as a charge nurse. That good per-
formance does not outweigh the bad judgment she exercised in
her conduct toward the new nurses.
The General Counsel is troubled by the conduct of the inves-
tigation. Specifically, she argues that it was suspect because
only some, and not all, of the new nurses were interviewed, and
some of the interviewees were not new nurses. That is irrele-
vant, since positive or neutral reports would not cancel out the
negative ones already received, and there was not a scintilla of
evidence presented that Andrews-Johnson improperly selected
interviewees or that any interviewee’s report was improperly
influenced. The General Counsel also expresses concern that

7 Not only is there no policy prohibiting staff from discussing with
each other any issues or concerns, but the hospital encouraged submis-
sion to management of such concerns, via several different methods, so
such concerns could be addressed. (Tr. 521–533; R. Exhs. 17, 18, 19,
20, 21, 22, 23, 24.)
WILLIAM BEAUMONT HOSPITAL 31
Ronk had made her own decision that Antilla and Brandt
should be terminated by October 29, before all interviews had
been conducted. (GC Exh. 34; Tr. 566.) This is of no conse-
quence; three negative reports had been received by that point.
There is no magic number of negative reports that would sup-
port termination; one may be adequate. It was not necessary to
interview all new nurses and certainly it was not necessary that
all new nurses reported misconduct by Antilla and Brandt in
order to support the terminations.
The General Counsel asserts that the Respondent departed
from past practice in terminating Antilla and Brandt, since pro-
gressive discipline was not applied. However, no comparable
situation had arisen in the past, and the hospital’s personnel
policy provided for termination without progressive discipline,
in appropriate circumstances.
The General Counsel argues that Respondent had tolerated
similar behavior in the past, in particular by Wonch. However,
this hardly supports the General Counsel’s allegation of retalia-
tory discharge, since Wonch engaged in the same discussions
as Antilla and Brandt, and made the same complaints. If the
Respondent were engaging in retaliation, then it would be ex-
pected that Wonch would have been fired as well. In any
event, the allegations made in the past (as well as the current
allegations) regarding Wonch were similar but were not of the
same level of severity as those raised against Antilla and
Brandt.
Finally, the General Counsel contends that Respondent relied
upon shifting reasons for the terminations. She finds it signifi-
cant that the Respondent’s Position Statement referenced the
Surgical Code of Conduct. That was counsel’s opinion and, in
any event, it is not a reason for the terminations; the reason was
the misconduct. She also finds it compelling that matters such
as Antilla’s tongue ring were mentioned in the termination
notice and that Brandt’s conduct during her orientation period
was noted. However, these are not different or shifting reasons;
they are simply other instances of past problems that were not-
ed. If they were not included in the termination notices, the
result would be the same. The investigation was initiated due to
complaints about mistreatment of new nurses and that was the
reason for both terminations.
Therefore I recommend that these charges be dismissed as to
both Antilla and Brandt.
B. Code of Conduct8
Determination of the legality of work rules requires a balanc-
ing of competing interests: the right of employees to organize
or otherwise engage in protected activity and the right of em-
ployers to maintain a level of discipline in the workplace.
In determining whether an employer’s work rules violate

8 The Respondent alleges that this amendment was untimely raised,
since the General Counsel became aware of the Code during the inves-
tigation some 5 months earlier yet failed to charge any violation until
late in the trial. While the charge certainly was raised late in the game
and no good reason for the delay was given, I find that the Respondent
was not prejudiced by the delay. This is a legal argument only, no wit-
nesses were relevant to the issue and none were called, and this charge
would not affect the potential relief if retaliatory discharge were found.
I therefore decline to reverse my ruling permitting the amendment.
Section 8(a)(1), the Board has held that:
[A]n employer violates Section 8(a)(1) when it maintains a
work rule that reasonablytends to chill employees in the exer-
cise of their Section 7 rights. Lafayette Park Hotel, 326
NLRB 824, 825 (1998). In determining whether a challenged
rule is unlawful, the Board must, however, give the rule a rea-
sonable reading. It must refrain from reading particular
phrases in isolation, and it must not presume improper inter-
ference with employee rights. Id. at 825, 827. Consistent with
the foregoing, our inquiry into whether the maintenance of a
challenged rule is unlawful begins with the issue of whether
the rule explicitly restricts activities protected by Section 7….
If the rule does not explicitly restrict activity protected by Sec-
tion 7, the violation is dependent upon a showing of one of the
following: (1) employees would reasonably construe the lan-
guage to prohibit Section 7 activity; (2) the rule was promul-
gated in response to union activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights.
Lutheran Heritage Village-Livonia, 343 NLRB 646, 646–647
(2004); see Lafayette Park Hotel, NLRB 824, 825 (1998), enfd.
mem. 203 F.3d 52 (D.C. Cir. 1999).
Thus, where the rules are likely to have a chilling effect on
Section 7 rights, their maintenance may be an unfair labor prac-
tice even absent evidence of enforcement.
The Respondent’s Code of Conduct does not explicitly re-
strict Section 7 activities, nor was it promulgated in response to
union activity, nor has it been applied to restrict Section 7 ac-
tivities. Thus, the issue at hand is whether employees would
reasonably construe the Code of Conduct to prohibit Section 7
activity.
In Lafayette, supra, the court found a rule prohibiting con-
duct that does not support the Respondent hotel’s goals and
objectives to be lawful, as it is unreasonable to assume, without
more, that remaining nonunion is one of those goals. The rules
address other legitimate business concerns and the court found
unreasonable the position that the rule was ambiguous as to
“goals.” However, the rule prohibiting making false, vicious,
profane, or malicious statements toward or concerning the hotel
or any employee was found to be a violation. There were simi-
lar results in Cincinnati Suburban Press, Inc., 289 NLRB 966,
975 (1988) (statements are protected absent a showing of reck-
less disregard for the truth or maliciousness), and American
Cast Iron Pipe Co., 234 NLRB 1126, 1131 (1978) (false and
inaccurate statements that are not malicious are protected). In
the instant case, there is no general prohibition against making
false statements. Rather, the Code prohibits intentional misrep-
resentation of information (which implies malice) and negative
or disparaging comments about the moral character or profes-
sional capabilities of an employee or physician. The Code’s
introductory paragraph makes it clear that the hospital’s con-
cern is patient care, so, when read in context, the rule has noth-
ing to do with protected activity.
The D.C. Circuit Court distinguished the work rules found
unlawful in Lafayette and Flamingo,9 restricting speech that is
arguably related to protected activities (and merely false), from

9 Flamingo Hilton-Laughlin, 330 NLRB 287 (1999).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
a rule prohibiting “abusive or threatening language” that seeks
to maintain basic civility. Adtranz ABB Daimler-Benz Trans-
portation, 331 NLRB 291 (2000), vacated in part 253 F.3d 19
(D.C. Cir. 2001). The court noted that an employer’s effort to
squelch criticism from employees, and threatening to punish
“false” statements without evidence of malicious intent is quite
different from demanding that employees comply with general-
ly accepted notions of civility that does not, in itself, constitute
an unfair labor practice. The court reiterated that it must be
considered whether there was enforcement of the rule where the
language may be protected, or mere maintenance of the rule.
Significantly, the court also observed that threatening and abu-
sive language is not inherent aspects of union organizing or
other Section 7 activities. It specifically rejected the argument
that the mere “unrealized potential” that “the rule could reason-
ably be interpreted as barring lawful union organizing propa-
ganda” rendered it facially invalid. Id. at 25–26. Ultimately, it
determined that “the Board’s position that the imposition of a
broad prophylactic rule against abusive and threatening lan-
guage is unlawful on its face is simply preposterous.” Id. at 25.
The Board subsequently agreed with and adopted the court’s
rationale when it decided Lutheran Heritage and Palms Hotel.
In Lutheran Heritage, supra, the Board found prohibitions
against verbal abuse, abusive, or profane language, or harass-
ment to be lawful. The mere fact that the rule could be read to
address Section 7 activity does not make it illegal. See Luther-
an Heritage, supra at 647 (“we will not conclude that a reason-
able employee would read the rule to apply to such activity
simply because the rule could be interpreted that way”). Simi-
larly, in Palms Hotel & Casino,10 the Board found lawful a rule
that prohibits employees from engaging in conduct which is or
has the effect of being injurious, offensive, threatening, intimi-
dating, coercing, or interfering with other employees. “Nor are
the rule’s terms so amorphous that reasonable employees would
be incapable of grasping the expectation that they comport
themselves with general notions of civility and decorum in the
workplace.” Id. at 1368. “We are simply unwilling to engage
in such speculation in order to condemn as unlawful a facially
neutral work rule that is not aimed at Section 7 activity and was
neither adopted in response to such activity nor enforced
against it.” Id at 1368.
However, the Board found unlawful a rule that prohibited
loud, abusive, or foul language, as it was so broad that it could
be interpreted as barring lawful union organizing propaganda.
Flamingo Hilton-Laughlin, 330 NLRB at 295. The Board found
unlawful a work rule that subjected employees to discipline for
the “inability or unwillingness to work harmoniously with other
employees.” 2 Sisters Food Group, 357 NLRB 1816, 1816
(2011). In that instance, the employer neglected to define those
terms; the prohibition was merely one of a laundry list of rules
and “was sufficiently imprecise that it could encompass any
disagreement or conflict among employees including those
related to Section 7.” Id, slip op. at 2. Similarly, a rule prohib-
iting “any type of negative energy or attitudes” was deemed
unlawful. Roomstore, 357 NLRB 1690 fn. 3 (2011). A rule
prohibiting “negative conversations” about managers was

10 Palms Hotel & Casino, 344 NLRB 1363 (2005).
found unlawful, as it had no clarifying language. Claremont
Resort & Spa, 344 NLRB 832, 836 (2005). In all of those in-
stances, the rules were ambiguous, and those ambiguities must
be resolved against the employer.
In the instant case, a reasonable reading of most of the rules
shows they are unrelated to and do not prohibit Section 7 activi-
ties. To find otherwise would ignore the employer’s rights in
the Lafayette balancing test and consider only potential em-
ployee rights.
The Beaumont Code at issue reads as follows:
Conduct on the part of a Beaumont employee or physician
that is inappropriate or
detrimental to patient care of [sic] Hospital operation or that
impedes harmonious interactions and relationships will not
be tolerated. Transgressors shall be subject to appropriate
remedial or corrective action. Improper conduct or inappro-
priate behavior or defiance in the following example [sic],
which includes but not limited [sic] to the following:
Willful and intentional threats, intimidation, harassment, hu-
miliation, or coercion of employees, physicians, patients, or
visitors.
Profane and abusive language directed at employees, physi-
cians, patients or visitors.
Behavior that is rude, condescending or otherwise socially
unacceptable. Intentional misrepresentation of information.
Verbal comments or physical gestures directed at others that
exceed the bounds of fair criticism.
. . . Negative or disparaging comments about the moral
character or professional capabilities of an employee or phy-
sician made to employees, physicians, patients, or visitors.
. . . Behavior that is disruptive to maintaining a safe and heal-
ing environment or that is counter to promoting teamwork.
(R. Exh. 6.)
Although the introductory paragraph references harmonious
relationships, the Code goes on to define in the six bullets the
specific types of conduct that are prohibited. The rules are put
in context via reference to legitimate business concerns (i.e.,
patient care, hospital operations, and a safe healing environ-
ment), that would tend to restrict their application.
I find that a reasonable employee would read the rules in the
context of the employment setting, a hospital, and understand
the lawful purpose of the rules.
I find that two of the six work rules (rule 4—“Verbal com-
ments or physical gestures directed at others that exceed the
bounds of fair criticism” and rule 6 part 2—“Behavior . . . that
is counter to promoting teamwork”) challenged by the General
Counsel violate Section 8(a)(1). Although neither Antilla nor
Brandt nor any other employee was disciplined for violation of
the Code, and no employee actually limited their activities
based on the Code, those portions of the Code do violate the
Board’s standards and may reasonably chill the exercise of
Section 7 rights. The two terms are ambiguous and undefined in
the Code, even when read in context: “comments or gestures
that exceed the bounds of fair criticism,” and “behavior that is
counter to promoting teamwork.” Those terms may reasonably
be interpreted as prohibiting lawful discussions or complaints
that are protected by Section 7 of the Act. Although the Re-
WILLIAM BEAUMONT HOSPITAL 33
spondent has legitimate concerns regarding appropriate staff
behavior, and has a legitimate interest in promulgating work
rules to try to maintain a safe atmosphere in the workplace,
those portions of the Code are overbroad and ambiguous.
“Where ambiguities appear in employee work rules promulgat-
ed by an employer, the ambiguity must be resolved against the
promulgator of the rule rather than the employees who are re-
quired to obey it.” See Norris/O’Bannon, 307 NLRB 1236,
1245 (1992).
However, I find that the other four challenged work rules (1,
2, 3, and 5) as well as the first portion of rule 6 in the Code of
Conduct are clear and legitimate when read in context, and
could not reasonably be interpreted as prohibiting lawful dis-
cussions or complaints. The first prohibits willful and inten-
tional conduct; the second profane and abusive language; the
third rude, condescending and otherwise socially unacceptable
behavior, as well as intentional misrepresentations (not merely
false, and the intent requirement implies a showing of malice);
the fifth pertains to statements regarding moral character or
professional capabilities; and part 1 of rule 6 behavior disrup-
tive to a safe and healing environment (a hospital), all of which
are clear and legitimate, and cannot reasonably be read in con-
text to prohibit protected activities.
Therefore, I find that two of the challenged work rules (rule
4—“Verbal comments or physical gestures directed at others
that exceed the bounds of fair criticism” and rule 6 part 2—
“Behavior . . . that is counter to promoting teamwork”) violate
Section 8(a)(1) as alleged but recommend that the charges as to
work rules 1, 2, 3, 5, and 6 part 1 be dismissed.
C Nondiscussion Instruction to Brandt
As discussed above, an employer may not impose work rules
that reasonably tend to chill employees in the exercise of their
Section 7 rights. Lafayette Park, supra at 825. The Board has
held that to justify a prohibition on employee discussion of
ongoing investigations, an employer must show that it has a
legitimate business justification that outweighs employees’
Section 7 rights. See Hyundai America Shipping Agency, 357
NLRB 860, 874 (2011) (no legitimate and substantial justifica-
tion where employer routinely prohibited employees from dis-
cussing matters under investigation).
While in Caesar’s Palace, 336 NLRB 271, 272 (2001), the
confidentiality rule imposed during a drug investigation was
held lawful where the rule was necessary to ensure the safety of
witnesses and to preserve the integrity of the investigation, no
similar rationale was asserted as the reason for the instruction
given to Brandt. In Banner Estrella Medical Center, 358
NLRB 809 (2012), the Board found the employer’s generalized
concern with, rather than a determination of a necessity for,
protecting the integrity of its investigations was insufficient to
outweigh employees’ Section 7 rights. In order to minimize the
impact on Section 7 rights, it is the employer’s burden “to first
determine whether in any give[n] investigation witnesses
need[ed] protection, evidence [was] in danger of being de-
stroyed, testimony [was] in danger of being fabricated, or there
[was] a need to prevent a cover up.” Hyundai, supra at 874.
In the instant case, the Respondent had no blanket confiden-
tiality rule, and no such rule was routinely issued during inves-
tigations. (Tr. 551.) Indeed, even in this investigation where
multiple individuals were named, the instruction was only is-
sued to one employee, Brandt. It seems clear that the instruc-
tion was not preplanned, but was given in response to Brandt’s
statement to Ronk that she intended to talk to new nurses and
offer to help them. Ronk testified that Andrews-Johnson had
advised her that she had learned in the investigative interviews
that staff was fearful of retaliation. (Tr. 550–551.) Ronk stated
that she told Brandt not to discuss the investigation with others
on the unit since she feared the possibility of additional charges
of bullying or intimidation.11 However, while it may have been
wise for Brandt to refrain from conversing with the new nurses
as she planned, since she now knew that some of them had
made negative reports about her, the instruction given to Brandt
not to discuss the investigation was overbroad, and did prevent
her from discussing the investigation with colleagues as she had
the right to do.
Therefore, I find that the nondiscussion instruction issued by
Ronk to Brandt violated Section 8(a)(1) of the Act as alleged.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. By issuing and maintaining portions of the Code of Con-
duct for Surgical Services and Perianesthesia, specifically
“Verbal comments or physical gestures directed at others that
exceed the bounds of fair criticism” and “Behavior . . . that is
counter to promoting teamwork,” the Respondent has violated
Section 8(a)(1) of the Act.
3. By issuing a nondiscussion directive to an employee, the
Respondent has violated Section 8(a)(1) of the Act.
4. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not otherwise violated the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12
ORDER
The Respondent, William Beaumont Hospital, located in Roy-
al Oak, Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Issuing or maintaining rules which employees would rea-

11 Protecting the integrity of the investigation was not given as a ra-
tionale. In any event, Andrews-Johnson’s investigation was well un-
derway by November 2, the date the nondiscussion instruction was
given to Brandt, so there could potentially have been only minimal
effects on the investigation.
12 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
sonably construe to discourage engaging in protected concerted
activities, specifically issuing or maintaining two portions of
the Code of Conduct for Surgical Services and Perianesthesia:
“Verbal comments or physical gestures directed at others that
exceed the bounds of fair criticism” and “Behavior . . . that is
counter to promoting teamwork” and issuing nondiscussion
directives to employees.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind portions of the Code of Conduct for Surgical
Services and Perianesthesia, specifically “Verbal comments or
physical gestures directed at others that exceed the bounds of
fair criticism” and “Behavior . . . that is counter to promoting
teamwork.”
(b) Within 14 days after service by the Region, post at its fa-
cility in Royal Oak, Michigan, copies of the attached notice
marked “Appendix.”13 Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since about Octo-
ber 1, 2012.
(c) Within 21 days after service by the Respondent, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the steps
that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated: Washington, D.C. January 30, 2014
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

13 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.”
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 do anything to prevent you from exercising the
above rights.
WE WILL NOT issue or maintain rules which employees would
reasonably construe to discourage engaging in protected con-
certed activities, specifically, two portions of the Code of Con-
duct for Surgical Services and Perianesthesia: “Verbal com-
ments or physical gestures directed at others that exceed the
bounds of fair criticism” and “Behavior . . . that is counter to
promoting teamwork” nor will we issue nondiscussion direc-
tives to employees.
WE WILL NOT in any like or related manner interfere with
your rights under Section 7 of the Act.
WE WILL rescind portions of the Code of Conduct for Surgi-
cal Services and Perianesthesia, specifically “Verbal comments
or physical gestures directed at others that exceed the bounds of
fair criticism” and “Behavior . . . that is counter to promoting
teamwork.”
WILLIAM BEAUMONT HOSPITAL
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/07–CA–093885 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.