Wilson Health (09-CA-210124)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

DATE: June 20, 2018

TO:

Garey E. Lindsay, Regional Director

Region 9

FROM:

Jayme L. Sophir, Associate General Counsel

Division of Advice

SUBJECT: Shelby County Memorial Hospital Association

d/b/a Wilson Health

Case 09-CA-210124

512-5012-0125

512-5012-3322

512-5012-6722

512-5012-6730

512-5036-3300

512-7550-6000

The Region submitted this case for advice as to whether: (1) certain of the

Employer’s rules and policies violate Section 8(a)(1) of the Act because they are

unlawfully overbroad, including the “Commitment to My Co-workers” document, a

prohibition on making disparaging comments online about the Employer, a

prohibition on the use of the Employer’s electronic communication systems, a

restriction on speaking on behalf of the Employer on social media, a prohibition on

sharing confidential information online, and a ban on the use of cellphone cameras;

(2) requiring employees to sign the Commitment to My Co-workers document violated

Section 8(a)(1); and (3) terminating the Charging Party either for refusing to sign the

Commitment to My Co-workers document or for suspected protected concerted

activity violated Section 8(a)(1).

We conclude that the Commitment to My Co-workers document is lawful, and the

Employer did not violate Section 8(a)(1) by asking employees to sign the document.

Additionally, we conclude that the Employer’s work rules prohibiting disparaging

comments online about the Employer and prohibiting the use of the Employer’s

electronic communication systems (specifically email) are unlawfully overbroad and

violate Section 8(a)(1). We conclude, however, that the Employer’s rules restricting

speaking on behalf of the Employer on social media, prohibiting the sharing of

confidential information online, and prohibiting the use of cellphone cameras are

lawful

bout the Employer and prohibiting the use of the Employer’s

electronic communication systems (specifically email) are unlawfully overbroad and

violate Section 8(a)(1). We conclude, however, that the Employer’s rules restricting

speaking on behalf of the Employer on social media, prohibiting the sharing of

confidential information online, and prohibiting the use of cellphone cameras are

lawful. Finally, we conclude that the Employer did not violate Section 8(a)(1) when it

terminated the Charging Party.

FACTS

Shelby County Memorial Hospital Association d/b/a Wilson Health (“the

Employer”) operates a hospital in Sidney, Ohio. The Charging Party is

(b) (6), (b) (7)(C)

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professional, respectful, and positive to co-workers at work. The

content of your conversations with your coworkers has not supported a

positive work environment. All performance issues are in violation of

Wilson’s Policy #2 – Core Values That Define Wilson Memorial

Hospital – ASPIRE – Always Serve with Professionalism, Integrity,

Respect, and Excellence. Despite numerous past conversations and

Performance Corrective Notices for this type of negative and

unprofessional conduct, the negative and unprofessional behavior has

not improved.

Policy #2 also had been referenced in the Charging Party’s previous final warning. It

has several provisions, including the specific provision in the Charging Party’s

termination notice, i.e., “[b]eing professional, respectful, and positive to co-workers at

work.”

ACTION

We conclude that various portions of the Employer’s rules and policies are

overbroad and violate Section 8(a)(1), but that other rules are not unlawful. We

further conclude that the Employer did not violate Section 8(a)(1) when it terminated

the Charging Party. Thus, the Region should issue complaint, absent settlement,

regarding only the aspects of the Employer’s rules that are unlawfully overbroad.

I

that various portions of the Employer’s rules and policies are

overbroad and violate Section 8(a)(1), but that other rules are not unlawful. We

further conclude that the Employer did not violate Section 8(a)(1) when it terminated

the Charging Party. Thus, the Region should issue complaint, absent settlement,

regarding only the aspects of the Employer’s rules that are unlawfully overbroad.

I.

Employer Rules and Policies

In cases where a facially neutral employer work rule, if reasonably interpreted,

would potentially interfere with Section 7 rights, the Board will evaluate two things:

(i) the nature and extent of the potential impact on Section 7 rights, and (ii)

legitimate business justifications associated with the requirement(s).6 The Board will

conduct this evaluation “consistent with the Board’s ‘duty to strike the proper balance

between . . . asserted business justifications and the invasion of employee rights in

light of the Act and its policy,’ focusing on the perspective of employees.”7 In so doing,

“the Board may differentiate among different types of NLRA-protected activities

(some of which might be deemed central to the Act and others more peripheral),” and

6 Boeing Co., 365 NLRB No. 154, slip op. at 2–3 (Dec. 14, 2017) (expressly overruling

the “reasonably construe” standard set forth in Lutheran Heritage Village-Livonia,

343 NLRB 646, 647 (2004)).

7 Id., slip op. at 3, quoting NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33–34

of NLRA-protected activities

(some of which might be deemed central to the Act and others more peripheral),” and

6 Boeing Co., 365 NLRB No. 154, slip op. at 2–3 (Dec. 14, 2017) (expressly overruling

the “reasonably construe” standard set forth in Lutheran Heritage Village-Livonia,

343 NLRB 646, 647 (2004)).

7 Id., slip op. at 3, quoting NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33–34

(1967).

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make “reasonable distinctions between or among different industries and work

settings.”8 The Board will also account for particular events that might shed light on

the purpose served by the rule or the impact of its maintenance on Section 7 rights.9

The Board also indicated that its balancing test will ultimately result in its

ability to classify the various types of employer rules into three categories, thereby

eliminating the need to conduct case-specific balancing as to certain types of rules so

as to provide employers, employees, and unions with greater certainty in the future.

The Board described the following categories:

• Category 1 will include rules that the Board designates as lawful to

maintain, either because: (i) the rule, when reasonably interpreted,

does not prohibit or interfere with the exercise of Section 7 rights and

thus no balancing of rights and justifications is required; or (ii) even

though the rule has a reasonable tendency to interfere with Section 7

rights, the potential adverse impact on those protected rights is

outweighed by employer justifications associated with the rule. The

Board included in this category rules requiring “harmonious

relationships” in the workplace, rules requiring employees to uphold

basic standards of “civility,” and rules prohibiting cameras in the

workplace

has a reasonable tendency to interfere with Section 7

rights, the potential adverse impact on those protected rights is

outweighed by employer justifications associated with the rule. The

Board included in this category rules requiring “harmonious

relationships” in the workplace, rules requiring employees to uphold

basic standards of “civility,” and rules prohibiting cameras in the

workplace.

• Category 2 will include rules that warrant individualized scrutiny in

each case as to whether the rule, when reasonably interpreted, would

prohibit or interfere with the exercise of Section 7 rights, and if so,

whether any adverse impact on protected conduct is outweighed by

legitimate business justifications.

• Category 3 will include rules that the Board will designate as

unlawful to maintain because they would prohibit or limit Section 7

conduct, and the adverse impact on Section 7 rights is not outweighed

by justifications associated with the rule. The Board included as an

example of a Category 3 rule one that prohibits employees from

discussing wages and benefits with each other.10

8 Boeing Co., 365 NLRB No. 154, slip op. at 15.

9 Id., slip op. at 16.

10 Id., slip op. at 3–4, 15.

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Applying the Board’s new test here, as discussed below, we conclude that the

Commitment to My Co-workers document is a lawful civility rule, which the Board

considers to be in Category 1. We conclude that the portion of the Employer’s Privacy

policy completely prohibiting employees’ non-work use of email is unlawful under

Purple Communications.11 We also conclude that the portion of the Privacy policy

about blogging is a Category 2 rule that violates Section 8(a)(1) because the impact on

employee NLRA rights outweighs the Employer’s business justification. Thus, the

Region should issue complaint, absent settlement, alleging those rules violate

Section 8(a)(1)

employees’ non-work use of email is unlawful under

Purple Communications.11 We also conclude that the portion of the Privacy policy

about blogging is a Category 2 rule that violates Section 8(a)(1) because the impact on

employee NLRA rights outweighs the Employer’s business justification. Thus, the

Region should issue complaint, absent settlement, alleging those rules violate

Section 8(a)(1). Finally, we conclude that the disputed portions of the Employer’s

Social Media policy are also Category 2 rules but that they do not violate Section

8(a)(1) because they would not reasonably be read to prohibit Section 7 activities and,

even if they were so read, any impact they would have on Section 7 rights is

outweighed by the Employer’s strong business justifications for those rules.

A.

Commitment to My Co-workers document

We conclude that the Commitment to My Co-workers document is a lawful

civility policy. The Board made clear in Boeing that employers may maintain rules

requiring “harmonious relationships” in the workplace and requiring employees to

uphold basic standards of “civility.”12 In so holding, the Board noted that any adverse

effect on Section 7 rights would be comparatively slight since a broad range of

activities protected by the NLRA are consistent with basic standards of harmony and

civility.13 The Board incorporated by reference the civility rules at issue in William

Beaumont Hospital and Member Miscimarra’s dissent arguing for their legality, in

which he reasoned that the vast majority of conduct covered by such rules does not

implicate Section 7 at all.14 Additionally, there is a distinction between regulations on

what employees can say about their coworkers as compared to what they can say

about their employer, and the impact on Section 7 activity is far less in the first type

11 361 NLRB 1050, 1063 (2014).

12 Id.

13 Id., slip op. at 4 n.15.

14 See William Beaumont Hospital, 363 NLRB No. 162, slip op. at 21–23 (Apr

Section 7 at all.14 Additionally, there is a distinction between regulations on

what employees can say about their coworkers as compared to what they can say

about their employer, and the impact on Section 7 activity is far less in the first type

11 361 NLRB 1050, 1063 (2014).

12 Id.

13 Id., slip op. at 4 n.15.

14 See William Beaumont Hospital, 363 NLRB No. 162, slip op. at 21–23 (Apr. 13,

2016) (incorporated by reference in Boeing Co., 365 NLRB No. 154, slip op. at 4 n.15);

Memorandum GC 18-04, “Guidance on Handbook Rules Post-Boeing,” at 3-5 (June 6,

2018).

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of rule.15 For instance, while protected concerted activity may involve criticism of

fellow employees or supervisors, the requirement that such criticism remain civil does

not unduly burden the core right to criticize. Instead, it burdens the peripheral

Section 7 right of criticizing other employees in a demeaning or inappropriate

manner.

Balanced against the minimal impact on Section 7 rights of these types of civility

rules, employers have significant interests in maintaining such rules. These interests

include the employer’s legal responsibility to maintain a workplace free of unlawful

harassment, its substantial interest in preventing violence, and its interest in

avoiding unnecessary conflict or a toxic work environment that could interfere with

productivity, patient care (in hospitals), and other legitimate business goals.16 In

addition to healthcare facilities, industries that rely on close teamwork or that are

particularly vulnerable to toxic work environments may have further legitimate

interests in promoting civility. Moreover, nearly every employee would desire and

expect his or her employer to foster harmony and civility in the workplace

ty, patient care (in hospitals), and other legitimate business goals.16 In

addition to healthcare facilities, industries that rely on close teamwork or that are

particularly vulnerable to toxic work environments may have further legitimate

interests in promoting civility. Moreover, nearly every employee would desire and

expect his or her employer to foster harmony and civility in the workplace.

Here, the Employer’s interest in civility and harmonious interactions is apparent

from the context of the Commitment to My Co-workers document and

email stating that employees need to remember their mutual accountability to one

another. The Employer also cited patient care concerns, similar to those raised in

William Beaumont Hospital, that there had been medication issues due to employees

not communicating between shifts.17 The document, both on its face and in the

15 Compare Cellco Partnership d/b/a Verizon Wireless, 365 NLRB No. 38, slip op. at

11–12 (Feb. 23, 2017) (Acting Chairman Miscimarra, dissenting in part) (although the

Board had found rule prohibiting “[d]isparaging . . . the company’s employees”

unlawful under Lutheran Heritage, Acting Chairman Miscimarra in dissent concluded

that the rule was lawful under his William Beaumont test), with Schwan’s Home

Service, 364 NLRB No. 20, slip op. at 16 (June 10, 2016) (Member Miscimarra,

concurring in part) (recognizing that “public statements by employees about the

workplace are central to the exercise of employee rights under the Act” and

concurring that rule requiring permission to use employer’s name was unlawful,

applying his William Beaumont test rather than Lutheran Heritage).

16 Boeing Co., 365 NLRB No. 154, slip op. at 17–19, 19 n.89.

17 See William Beaumont Hospital, 363 NLRB No. 162, slip op. at 8 (the hospital had

argued, and Member Miscimarra discussed in his dissent, that a rule requiring

harmonious interactions was necessary after a newborn baby died in part due to

inadequate communication among hospital employees)

test rather than Lutheran Heritage).

16 Boeing Co., 365 NLRB No. 154, slip op. at 17–19, 19 n.89.

17 See William Beaumont Hospital, 363 NLRB No. 162, slip op. at 8 (the hospital had

argued, and Member Miscimarra discussed in his dissent, that a rule requiring

harmonious interactions was necessary after a newborn baby died in part due to

inadequate communication among hospital employees).

(b) (6), (b) (7)(C)

Case 09-CA-210124

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context in which

distributed it to employees in

unit, relates to

employees’ interactions with their coworkers, and does not impinge on their ability to

discuss terms and conditions of employment or criticize the Employer. Since the

Commitment to My Co-workers document is the type of civility policy that the Board

considers to be a lawful Category 1 policy, the Region should dismiss the allegation

that the Employer unlawfully maintained this policy, absent withdrawal.

Furthermore, because the Commitment to My Co-workers document is a lawful

civility policy, the Employer also did not violate Section 8(a)(1) by requesting that

employees sign it. Indeed, even if (contrary to the Employer’s assertions)18 employees

were required to sign the document, that would not have been a violation of the Act.

Therefore, the Region should also dismiss this allegation in the charge, absent

withdrawal.

B.

Policy 47 – Privacy

1.

E-mail, Internet, blogs and voice mail are to be used only for

[Employer] business purposes and not personal ones

. Indeed, even if (contrary to the Employer’s assertions)18 employees

were required to sign the document, that would not have been a violation of the Act.

Therefore, the Region should also dismiss this allegation in the charge, absent

withdrawal.

B.

Policy 47 – Privacy

1.

E-mail, Internet, blogs and voice mail are to be used only for

[Employer] business purposes and not personal ones.

In Purple Communications, the Board adopted the presumption that “employees

who have rightful access to their employer’s email system in the course of their work

have a right to use the email system to engage in Section 7-protected communications

on nonworking time.”19 To justify a total ban on employees’ non-work use of email,

including Section 7 use on non-working time, an employer must demonstrate that

“special circumstances make the ban necessary to maintain production or

discipline.”20 The Board has suggested that it will be the “rare case” where special

18 The evidence does not establish that employees were required to sign the

document. While

email stated that employees were “asked” to sign the

document by a specific date, the Employer did not state any consequence for not

signing the document. The Charging Party also faced no adverse outcome based on

refusing to sign the document, and even according to

version of events,

failure

to sign the document was not mentioned for several weeks after the supposed

deadline. Additionally, the Employer has never relied on the document to discipline

employees in the department.

19 361 NLRB at 1063 (overruling Register Guard, 351 NLRB 1110 (2007), enfd. in

relevant part, 571 F.3d 53 (D.C. Cir. 2009), to the extent it held that employees have

no statutory right to use their employers’ email systems for Section 7 purposes).

20 Id. at 1050.

(b) (6), (b) (7)(C)

(b) (6), (b)

(b) (6), (b) (7)(C)

(b) (6), (b)

19 361 NLRB at 1063 (overruling Register Guard, 351 NLRB 1110 (2007), enfd. in

relevant part, 571 F.3d 53 (D.C. Cir. 2009), to the extent it held that employees have

no statutory right to use their employers’ email systems for Section 7 purposes).

20 Id. at 1050.

(b) (6), (b) (7)(C)

(b) (6), (b)

(b) (6), (b) (7)(C)

(b) (6), (b)

(b) (6), (b)

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circumstances justify a total ban, and it has emphasized that in demonstrating

special circumstances, an employer’s “mere assertion of an interest that could

theoretically support a restriction” is insufficient.21

In this case, the Employer provides its employees, including

access to its

computers and email system as part of their work. Thus, the Employer’s total ban on

personal use of its email system in Policy 47, which extends to non-working time,

violates Section 8(a)(1) under Purple Communications. Although the Employer states

in a separate policy in the Employer Guidebook, Policy 61, that incidental personal

use of its technology resources is permitted, such as sending or receiving “necessary

and occasional personal communications,” that separate policy fails to cure the

violation.22 Employees should not have to decide at their own peril which of two

conflicting policies they are to follow.23

The Employer argues that HIPAA rules and patient confidentiality concerns

justify its refusing to allow employees to access email for Section 7 purposes during

non-work time. However, this assertion is not sufficient to justify the ban under the

high standard for special circumstances in Purple Communications.24 The Employer

provided no specific evidence to support its claim that such a rule is required to

comply with HIPAA

ules and patient confidentiality concerns

justify its refusing to allow employees to access email for Section 7 purposes during

non-work time. However, this assertion is not sufficient to justify the ban under the

high standard for special circumstances in Purple Communications.24 The Employer

provided no specific evidence to support its claim that such a rule is required to

comply with HIPAA. The Employer is able to lawfully restrict the disclosure of

confidential patient information through confidentiality rules without prohibiting

Section 7 activity utilizing email during non-work time.25 Additionally, the

21 Id. at 1063.

22 See, e.g., Olathe Healthcare Center, 314 NLRB 54, 58 (1994) (unlawful no-

solicitation rule in handbook not cured by presence of different, lawful no-solicitation

rule in handbook).

23 See, e.g., DirecTV Holdings, LLC, 359 NLRB 545, 547 (2013) (finding employer’s

Intranet policy unlawfully ambiguous where employees would read confidentiality

provision in a separate set of rules to prohibit Section 7-protected communications),

affd. and adopted 362 NLRB No. 48 (March 31, 2015), enf. denied on other grounds

650 Fed. Appx. 846 (5th Cir. 2016).

24 361 NLRB at 1063 (the Board anticipating only the “rare case” where special

circumstances can justify a complete ban and that employers may not merely assert

an interest that theoretically supports a restriction in order to meet its burden of

establishing special circumstances).

25 See discussion of the Employer’s confidentiality policy below.

650 Fed. Appx. 846 (5th Cir. 2016).

24 361 NLRB at 1063 (the Board anticipating only the “rare case” where special

circumstances can justify a complete ban and that employers may not merely assert

an interest that theoretically supports a restriction in order to meet its burden of

establishing special circumstances).

25 See discussion of the Employer’s confidentiality policy below.

(b) (6), (b) (7)(C)

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Employer’s claimed patient privacy interest is belied by Policy 61’s acknowledgement

that employees may use the email system for incidental personal use. We therefore

conclude that the rule is unlawful under Purple Communications to the extent that it

prohibits use of email for Section 7 purposes during non-work time.26 Because the

Board has not expanded the holding of Purple Communications beyond employer

email systems, the remainder of the Employer’s policy referencing Internet, blogs, and

voice mail, is lawful.

2.

Blogging outside of the hospital must not include . . . disparaging

comments about the hospital.

A rule prohibiting disparagement of the employer has a significant impact on

NLRA rights. Concerted criticism of an employer’s employment and compensation

practices is central to rights guaranteed by the NLRA.27 A general rule against

disparaging the company, absent limiting context or language, would cause employees

to refrain from publicly criticizing employment problems, including on social media.28

Such criticism is often the seed that becomes protected concerted activity for

improving working conditions, the core of Section 7

compensation

practices is central to rights guaranteed by the NLRA.27 A general rule against

disparaging the company, absent limiting context or language, would cause employees

to refrain from publicly criticizing employment problems, including on social media.28

Such criticism is often the seed that becomes protected concerted activity for

improving working conditions, the core of Section 7.

Although an employer may be understandably wary of reputational damage that

can occur when criticized by its own employees, such an interest does not outweigh

the core NLRA rights undermined by a broad ban on criticism or disparagement of

the employer.29 Rules against disparaging the employer do not implicate the same

26 The General Council does not necessarily agree with the rationale or holding in

Purple Communications. The Region should issue complaint under current Board law,

but should resubmit the case to Advice for alternative argument prior to submitting it

to the Board.

27 Richboro Community Mental Health Council, 242 NLRB 1267, 1267–68 (1979). Cf.

Quicken Loans, Inc., 359 NLRB 1201, 1201 n.3, 1205 (2013) (finding unlawful under

Lutheran Heritage rule that employees may not “publicly criticize, ridicule, disparage

or defame the Company”), incorporated by reference in 361 NLRB 904 (2014).

28 See Teletech Holdings, Inc., 342 NLRB 924, 931–32 (2004) (finding unlawful rule

that employees were not to speak negatively about their job) (citing Lexington Chair

Co., 150 NLRB 1328 (1965) (holding unlawful rule prohibiting employees from

criticizing company rules and policies), enfd. 361 F.2d 283, 287 (4th Cir. 1966)).

29 See, e.g., Triple Play Sports Bar & Grille, 361 NLRB 308, 311–13 (2014) (discussing

an employer’s interest in preventing disparagement of its products or services and

protecting its reputation as balanced against Section 7 rights).

employees from

criticizing company rules and policies), enfd. 361 F.2d 283, 287 (4th Cir. 1966)).

29 See, e.g., Triple Play Sports Bar & Grille, 361 NLRB 308, 311–13 (2014) (discussing

an employer’s interest in preventing disparagement of its products or services and

protecting its reputation as balanced against Section 7 rights).

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civility and anti-harassment interests involved in rules against disparaging

coworkers.30

Since this rule is an absolute ban on employees making any comments

disparaging the Employer while blogging, and is not limited to prohibiting

disparagement of the Employer’s product or services, the provision would have a

significant impact on online protected concerted activity that is not outweighed by any

legitimate interests of the Employer.31 Therefore, this rule should be treated as a

Category 2 rule,32 and the Region should issue complaint, absent settlement, alleging

this provision in Policy 47 is unlawful.

C.

Policy 62 – Social Media

1.

Do Not Refer to [the Employer] When Posting – If employees

choose to post online, they must speak as individuals and not

speak on behalf of the [E]mployer. Employees must identify

themselves using the first person singular. Any online activity

relating to or impacting the [E]mployer must be accompanied

by a disclaimer such as: ‘The views expressed on this site are

my own and not those of [the Employer].’ This disclaimer

must be visible and easy to understand.

Employees Are NOT Authorized to Speak on Behalf of the

Employer, Unless Explicitly Given Permission – If employees

seek to establish an account identifying the [E]mployer or

sharing information about the [E]mployer, employees must

obtain approval from the Marketing and Public Relations

Department. Employees cannot display the [E]mployer’s logo

30 See discussion in note 15, supra

derstand.

Employees Are NOT Authorized to Speak on Behalf of the

Employer, Unless Explicitly Given Permission – If employees

seek to establish an account identifying the [E]mployer or

sharing information about the [E]mployer, employees must

obtain approval from the Marketing and Public Relations

Department. Employees cannot display the [E]mployer’s logo

30 See discussion in note 15, supra.

31 See Triple Play Sports Bar & Grille, 361 NLRB at 311–12 (discussing the standard

for disparaging comments from Jefferson Standard, 346 U.S. 464, 475–78 (1953), and

noting that the Facebook comments at issue did not lose the Act’s protection where,

among other things, they did not mention the employer’s products or services); Valley

Hospital Medical Center, 351 NLRB 1250, 1252 (2007) (explaining that the Board

distinguishes between “disparagement of an employer’s product and the airing of

what may be highly sensitive [employment] issues” and looks at whether the

employee had a “malicious motive”), enfd. mem. sub nom. Nevada Service Employees

Local 1107 v. NLRB, 358 F. App’x 783 (9th Cir. 2009).

32 See Guideline Memorandum GC 18-04 at 17.

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or attempt to represent the [E]mployer without obtaining

explicit written approval from the [E]mployer.

We conclude that this rule lawfully prohibits employees from speaking on behalf

of or attempting to represent the Employer online.

Work rules prohibiting employees from referring to their employer online have

significant impact on core Section 7 activity. Although much online activity covered by

this type of rule may be unrelated to Section 7 activity, almost any protected

concerted activity taking place in public (which includes most social media activity)

will involve use of an employer’s name

the Employer online.

Work rules prohibiting employees from referring to their employer online have

significant impact on core Section 7 activity. Although much online activity covered by

this type of rule may be unrelated to Section 7 activity, almost any protected

concerted activity taking place in public (which includes most social media activity)

will involve use of an employer’s name. Public statements by employees about their

workplace are “central to the exercise of employee rights under the Act,” as are social

media postings among employees regarding concerns about working conditions.33

On the other hand, employers have significant interest in requiring that only

authorized individuals speak for the company.34 Therefore, employers may have rules

ensuring that employees do not, intentionally or unintentionally, make statements

that can be interpreted as coming from the company, as long as it is not a total ban on

use of the company’s name.

Here, the rule is not an absolute ban on referring to the Employer, since the

policy acknowledges that employees may choose to post online about the Employer

and provides certain instructions for doing so, such as utilizing a disclaimer. Instead,

the rule would reasonably be read to only restrict employees from speaking on behalf

of the Employer without permission when posting online.35 This limited restriction is

33 Schwan’s Home Service, 364 NLRB No. 20, slip op. at 16 (Member Miscimarra,

concurring) (concluding that rule requiring permission to use employer’s name was

unlawful, applying his William Beaumont test rather than Lutheran Heritage) (citing

Valley Hospital Medical Center, 351 NLRB at 1252. See also UPMC, 362 NLRB No.

191, slip op. at 1, 25 (finding unlawful a rule prohibiting employees from “describing

any affiliation with [the employer]” online, without the employer’s consent); Triple

Play Sports Bar & Grille, 361 NLRB at 312-13 (discussing Facebook posts by

employees about their terms and conditions of employment)

age) (citing

Valley Hospital Medical Center, 351 NLRB at 1252. See also UPMC, 362 NLRB No.

191, slip op. at 1, 25 (finding unlawful a rule prohibiting employees from “describing

any affiliation with [the employer]” online, without the employer’s consent); Triple

Play Sports Bar & Grille, 361 NLRB at 312-13 (discussing Facebook posts by

employees about their terms and conditions of employment).

34 See UPMC, 362 NLRB No. 191, slip op at 14 n.17 (August 27, 2015) (Member

Johnson, concurring in part) (recognizing that the employer has a “legitimate interest

in prohibiting non-authorized employees from acting as representatives or

spokespeople” for the employer). See also Guideline Memorandum GC 18-04 at 14.

35 Policy 62 also includes a “savings clause” that states “[p]rotected concerted activity

covered by the National Labor Relations Act is not prohibited by this policy.” The

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supported by the Employer’s strong interest in determining who is an authorized

representative or spokesperson, and therefore is a lawful rule.

For similar reasons, we conclude that it is lawful to prohibit employees’ use of

their employer’s logo or other intellectual property. Although some protected

concerted activity may fall under such a rule, including fair use of an employer’s logo

on picket signs or leaflets, usually employees will understand this type of rule as

protecting the employer’s intellectual property from commercial and other non-

Section 7 related use. Even where employees would reasonably interpret such a rule

to apply to fair use of an employer’s logo as part of protected concerted activity, it is

unlikely that the rule would actually cause them to refrain from doing so. Any chill

would have only a peripheral effect on Section 7 rights as employees may refrain from

using the logo as part of their protected concerted activity, but not stop the protected

concerted activity itself

terpret such a rule

to apply to fair use of an employer’s logo as part of protected concerted activity, it is

unlikely that the rule would actually cause them to refrain from doing so. Any chill

would have only a peripheral effect on Section 7 rights as employees may refrain from

using the logo as part of their protected concerted activity, but not stop the protected

concerted activity itself. Employers have a strong interest in protecting their

intellectual property, including logos and trademarks, as that property can have

significant value and failure to police its use may result in significant financial loss.

Based on the preceding, the Region should dismiss the allegation as it pertains to

this section of the Social Media policy, absent withdrawal.

2.

Do Not Post Confidential Information – Employees must

always protect the confidential information of patients, co-

workers or other employees. Employees must make sure that

online postings do not violate any non-disclosure obligations,

HIPAA, privacy or other confidentiality obligations.

Employees may not share any confidential or proprietary

information about the [E]mployer or the [E]mployer’s

finances, business strategy, or any other information that has

not been publically released by the [E]mployer.

Rules prohibiting disclosure of customer information,36 and trade or business

secrets,37 should be considered Category 1 rules, as the vast majority of conduct

Board has said that an employer’s express notice to employees advising them of their

NLRA rights “may, in certain circumstances, clarify the scope of an otherwise

ambiguous and unlawful rule.” First Transit Inc., 360 NLRB 619, 621 (2014).

36 Schwan’s Home Service, 364 NLRB No. 20, slip op. at 16 (Member Miscimarra,

dissenting in part) (although the Board found a confidentiality rule about

“information concerning customers” unlawful under Lutheran Heritage, Member

Miscimarra in dissent argued that the rule was lawful under his William Beaumont

test)

ambiguous and unlawful rule.” First Transit Inc., 360 NLRB 619, 621 (2014).

36 Schwan’s Home Service, 364 NLRB No. 20, slip op. at 16 (Member Miscimarra,

dissenting in part) (although the Board found a confidentiality rule about

“information concerning customers” unlawful under Lutheran Heritage, Member

Miscimarra in dissent argued that the rule was lawful under his William Beaumont

test). See also Guideline Memorandum GC 18-04 at 9–11.

Case 09-CA-210124

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affected by these types of rules is unrelated to Section 7.38 Therefore, the provisions of

this rule concerning the confidentiality of patient information (i.e., HIPAA), and

confidential or proprietary information about the Employer’s finances and business

strategies are lawful.

General prohibitions on posting confidential information should be considered

Category 2 rules, where they would reasonably be read to include information about

terms and conditions of employment,39 and such rules should be found unlawful

where the impact on Section 7 rights outweighs the employer’s legitimate business

justification for the rule. However, context is important in determining whether such

a rule would reasonably be read as prohibiting protected activities. We conclude that

the general prohibitions in this rule regarding the disclosure of “confidential

information of . . . coworkers or other employees” and the disclosure of “any other

information that has not been publically released” are lawful.

Employees would not reasonably read this confidentiality rule as prohibiting

them from disclosing information about their wages and working conditions with

their co-workers or a union. The rule does not define confidential information as

wages or other terms of employment, or even as information about their coworkers;

rather it specifically refers to “confidential information of . .

ul.

Employees would not reasonably read this confidentiality rule as prohibiting

them from disclosing information about their wages and working conditions with

their co-workers or a union. The rule does not define confidential information as

wages or other terms of employment, or even as information about their coworkers;

rather it specifically refers to “confidential information of . . . coworkers or other

employees.”40 Additionally, the requirement that employees keep confidential “any

37 See Lafayette Park Hotel, 326 NLRB 824, 826 (1998) (finding lawful a rule

prohibiting “divulging Hotel-private information to employees or other individuals”),

enfd. mem. 203 F.3d 52 (D.C. Cir. 1999).

38 See e.g., Super K-Mart, 330 NLRB 263, 263 (1999) (a restriction on disclosing

confidential information did not implicate Section 7 when terms and conditions of

employment were not specifically included in the restriction).

39 See Guideline Memorandum GC 18-04 at 17.

40 Compare Cellco Partnership d/b/a Verizon Wireless, 365 NLRB No. 38, slip op. at 9

(Member Miscimarra, concurring) (finding that rule requiring employees to protect

“confidential personal employee information” was lawful since it listed as examples

“social security numbers, identification numbers, passwords, bank account

information and medical information,” which would have almost no impact on

Section 7 rights), with Victory Casino Cruises II, 363 NLRB No. 167, slip op. at 8

(Apr. 22, 2016) (Member Miscimarra, concurring) (finding unlawful rule classifying

“all information about present or past employees to be confidential” as the blanket

prohibition would encompass protected concerted activity); and Rocky Mountain Eye

Center, P.C., 363 NLRB No. 34, slip op. at 1 n.1, 5 (Nov. 3, 2015) (Member

pr. 22, 2016) (Member Miscimarra, concurring) (finding unlawful rule classifying

“all information about present or past employees to be confidential” as the blanket

prohibition would encompass protected concerted activity); and Rocky Mountain Eye

Center, P.C., 363 NLRB No. 34, slip op. at 1 n.1, 5 (Nov. 3, 2015) (Member

Case 09-CA-210124

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other information that has not been publicly released” also is not concerned with

working conditions when read in context. The rule specifically mentions HIPAA and

the Employer’s proprietary information regarding finances and business strategy,

indicating that it is primarily directed at private medical information and the

Employer’s business secrets.41 In the context of prohibiting disclosure of these

categories of confidential information, employees would be unlikely to read the rule as

also prohibiting disclosure of information about terms and conditions of

employment.42

Moreover, even if employees would reasonably read this rule as prohibiting some

protected concerted activities, any impact on NLRA rights must be balanced against

the Employer’s significant business interests in having such a confidentiality rule in a

hospital setting. The Board has recognized the significant interests that healthcare

employers have in maintaining confidentiality rules, particularly those directed at

protecting patient information.43 The full scope of the rule here shows that it is

directed at protecting such information.

With regard to the impact of general confidentiality rules on Section 7 rights, a

central aspect of protected concerted activity under the NLRA involves discussions

and coordination among employees, and with unions and others, regarding wages and

working conditions. This includes discussing the names and contact information of

other employees with coworkers or union representatives

tion.

With regard to the impact of general confidentiality rules on Section 7 rights, a

central aspect of protected concerted activity under the NLRA involves discussions

and coordination among employees, and with unions and others, regarding wages and

working conditions. This includes discussing the names and contact information of

other employees with coworkers or union representatives. Confidentiality rules that

ban discussion of broad, undefined “employee information” or “employer business,” or

Miscimarra, concurring) (rule listing information about employees as confidential was

unlawful).

41 The Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. §

1320d-6 (2010), restricts the disclosure of individually identifiable health information.

42 The “savings clause” in this policy, which is discussed at note 35, supra, also

reduces the likelihood of employees reading this confidentiality provision to include

prohibiting the disclosure of terms and conditions of employment that may be part of

protected concerted activity.

43 See, e.g., Flagstaff Medical Center, 357 NLRB 659, 663 (2011) (finding hospital’s no-

photography rule to be lawful where employer had “significant interest in preventing

the wrongful disclosure of individually identifiable health information”), enfd. in part

on other grounds, 715 F.3d 928 (D.C. Cir. 2013).

concerted activity.

43 See, e.g., Flagstaff Medical Center, 357 NLRB 659, 663 (2011) (finding hospital’s no-

photography rule to be lawful where employer had “significant interest in preventing

the wrongful disclosure of individually identifiable health information”), enfd. in part

on other grounds, 715 F.3d 928 (D.C. Cir. 2013).

Case 09-CA-210124

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that prevent employees from using freely available contact information to

communicate with one another, will generally adversely affect core NLRA rights.44

However, the Employer has a very strong interest in confidentiality and

following laws requiring privacy as a health care operation.45 Improper disclosure of

patients’ personally identifiable health information could result in liability on behalf

of the Employer under HIPAA. The Employer, as with all other companies, also has

an interest in keeping its proprietary information confidential.46 In balancing the

Employer’s significant interest in confidentiality, the impact of this rule on employees’

Section 7 activity will not be so significant as to outweigh the Employer’s legitimate

justifications.47 These overwhelming business justifications allow the Employer to

lawfully maintain this confidentiality policy even if the policy is not worded as

perfectly as possible.48

44 See Long Island Association for AIDS Care, Inc., 364 NLRB No. 28, slip op. at 1 n.5

(June 14, 2016) (Member Miscimarra, concurring) (finding a rule prohibiting the

disclosure of certain information about employees unlawful under Member

Miscimarra’s William Beaumont Hospital test because such disclosures are central to

many types of Section 7 activity); Victory Casino Cruises II, 363 NLRB No. 167, slip

op. at 8 (Member Miscimarra, concurring); Rocky Mountain Eye Center, P.C., 363

NLRB No. 34, slip op. at 1 n.1 (Member Miscimarra, concurring).

45 Cf

he

disclosure of certain information about employees unlawful under Member

Miscimarra’s William Beaumont Hospital test because such disclosures are central to

many types of Section 7 activity); Victory Casino Cruises II, 363 NLRB No. 167, slip

op. at 8 (Member Miscimarra, concurring); Rocky Mountain Eye Center, P.C., 363

NLRB No. 34, slip op. at 1 n.1 (Member Miscimarra, concurring).

45 Cf. Flagstaff Medical Center, 357 NLRB at 663 (discussing the hospital’s significant

interest in patient privacy in finding a no photography rule lawful); Whole Foods

Market, Inc., 363 NLRB No. 87, slip op. at 4–5 (Dec. 24, 2015) (distinguishing the non-

health care employer’s privacy interests as “not nearly as pervasive or compelling as

the patient privacy interest” in a healthcare setting), enfd. 691 Fed.Appx. 49 (2d Cir.

2017). The Board has long held that individuals’ medical information has a

“legitimate aura of confidentiality.” Johns-Manville Sales Corp., 252 NLRB 368, 368

(1980).

46 See Guideline Memorandum GC 18-04 at 9–11.

47 Despite this rule being lawful to maintain, the Board noted in Boeing that the

application of a lawful rule against employees engaged in protected concerted activity

is still unlawful. 365 NLRB No. 154, slip. op. at 16.

48 Boeing Co., 365 NLRB No. 154, slip op. at 9 & n.43 (criticizing the “linguistic

perfection” improperly required by the Board under the old, Lutheran Heritage

standard for facially neutral work rules).

n of a lawful rule against employees engaged in protected concerted activity

is still unlawful. 365 NLRB No. 154, slip. op. at 16.

48 Boeing Co., 365 NLRB No. 154, slip op. at 9 & n.43 (criticizing the “linguistic

perfection” improperly required by the Board under the old, Lutheran Heritage

standard for facially neutral work rules).

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Therefore, we conclude that the confidentiality provision in Policy 62 is a

Category 2 rule, but that employees would not reasonably read this particular

provision, in context, to prohibit protected activities, and even if they would, the

substantial privacy interest of the Employer as a health care operation outweighs the

adverse impact on NLRA protected conduct and renders this a lawful rule. The

Region should dismiss the allegation that Policy 62 is unlawfully overbroad.

D.

Policy A – Appropriate Telephone/Cellular Telephone Usage

The use of cellular telephones is prohibited for all [Employer]

employees unless during scheduled breaks and they should only use

them in their respective lounges and/or designated break areas.

The use of cellular cameras is prohibited to ensure HIPAA

compliance.

In Boeing, the Board placed no-photography rules in Category 1.49 In doing so,

the Board determined that no-photography rules have little impact on NLRA-

protected rights, since photography is not central to protected concerted activity, and

employers have substantial interest in limiting photography on their property

because of concerns with security, the protection of property, the protection of

proprietary, confidential, and customer information, avoiding legal liability, and

maintaining the integrity of operations.50 Even prior to Boeing, the Board was

concerned about camera use and patient privacy issues in the health care setting.51

The Employer’s policy prohibiting the use of cellphone cameras is a lawful,

Category 1 rule

curity, the protection of property, the protection of

proprietary, confidential, and customer information, avoiding legal liability, and

maintaining the integrity of operations.50 Even prior to Boeing, the Board was

concerned about camera use and patient privacy issues in the health care setting.51

The Employer’s policy prohibiting the use of cellphone cameras is a lawful,

Category 1 rule. The Employer even emphasizes its interest in patient privacy by

citing HIPAA compliance in the text of the rule as its justification for the rule.52 The

Employer’s Policy A also does not unlawfully prevent employees from possessing and

using cellphones during non-work time and in non-work areas for communications,

49 Id., slip op. at 17. See also Guideline Memorandum GC 18-04 at 5.

50 Id., slip op. at 17–19.

51 Flagstaff Medical Center, 357 NLRB at 663 (finding that a no-photography rule was

lawful because the rule’s maintenance was supported by substantial patient

confidentiality interests and employees would not reasonably interpret the rule as

restraining Section 7 activity)..

52 See note 41, supra.

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One final theory of unlawful discharge must be considered before concluding that

the Employer did not violate Section 8(a)(1) by terminating the Charging Party. In

Continental Group, the Board clarified the longstanding principle known as the

“Double Eagle rule,” that discipline pursuant to an unlawfully overbroad work rule

violates Section 8(a)(1) if an employee violates the rule by engaging in either

protected concerted activity or activity that – while not concerted – “touches the

concerns animating Section 7.”59 The Board’s rationale for this rule is the chilling

effect that the enforcement of overbroad rules would likely have on the willingness of

employees to exercise of their Section 7 rights.60 This rule only applies if the employer

disciplines the employee pursuant to an unlawful rule, how

ed concerted activity or activity that – while not concerted – “touches the

concerns animating Section 7.”59 The Board’s rationale for this rule is the chilling

effect that the enforcement of overbroad rules would likely have on the willingness of

employees to exercise of their Section 7 rights.60 This rule only applies if the employer

disciplines the employee pursuant to an unlawful rule, however, such as by

referencing the unlawful rule at the time of the discipline or referencing conduct

prohibited by the unlawful rule.61 Absent such a reference, the rationale underlying

Continental Group would not be present because there is no potential chilling effect

on employees’ Section 7 activity.

Here, there are two relevant documents from the Employer that must be

considered, specifically, the Commitment to My Co-workers document and Policy #2,

Core Values that Define the Employer. Regarding the former, we have concluded that

the Commitment to My Co-workers document was not an unlawful rule, and there is

also no evidence that the Charging Party’s failure to sign the document played any

role in

termination. Moreover, the Employer did not reference that document as a

59 Continental Group, 357 NLRB 409, 411–12 (2011) (citing Double Eagle Hotel &

Casino, 341 NLRB 112, 112 n.3 (2004), enfd. 414 F.3d 1249 (10th Cir. 2005), cert.

denied, 546 U.S. 1170 (2006)). The General Counsel does not necessarily agree with

the holding or rationale set forth in Continental Group.

60 Continental Group, 357 NLRB at 411. See also Butler Medical Transport, LLC, 365

NLRB No. 112, slip op. at 7 (July 27, 2017) (“When an employee sees a coworker

actually disciplined or discharged for conduct that, in somewhat different

circumstances, would be protected by the Act, the employee (not to mention the

coworker himself) is surely more likely to be chilled by the enforcement of an unlawful

rule than he would be by the mere maintenance of the rule.”).

61 E.g., Butler Medical Transport, LLC, 365 NLRB No

7) (“When an employee sees a coworker

actually disciplined or discharged for conduct that, in somewhat different

circumstances, would be protected by the Act, the employee (not to mention the

coworker himself) is surely more likely to be chilled by the enforcement of an unlawful

rule than he would be by the mere maintenance of the rule.”).

61 E.g., Butler Medical Transport, LLC, 365 NLRB No. 112, slip op. at 3–4 (employer

informed employee he was being discharged for violating its social media policy,

which was overbroad); Continental Group, 357 NLRB at 410, 413 (finding discipline

was pursuant to overbroad no-access rule where, although written warning did not

specify that employee had breached the rule, it did state that he was “frequenting the

property while off duty” and “loitering on the property,” which was conduct prohibited

by the rule).

(b) (6), (b)

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basis for the Charging Party’s termination. Regarding Policy #2, the Employer

explicitly stated during the termination meeting on

that the Charging Party’s

conduct violated that policy. Specifically, the Employer said that the Charging Party’s

comments to coworkers violated the aspects of Policy #2 relating to “[b]eing

professional, respectful, and positive to co-workers at work.” However, as with the

provisions of the Commitment to My Co-workers document, we conclude that this

aspect of Policy #2 is a lawful civility rule under Boeing.62 Therefore, since the

Charging Party was not terminated pursuant to an unlawful rule, the concerns about

chilling Section 7 activity underpinning Continental Group do not apply. Thus, the

Employer’s termination of the Charging Party also did not violate Section 8(a)(1)

under this alternate theory

kers document, we conclude that this

aspect of Policy #2 is a lawful civility rule under Boeing.62 Therefore, since the

Charging Party was not terminated pursuant to an unlawful rule, the concerns about

chilling Section 7 activity underpinning Continental Group do not apply. Thus, the

Employer’s termination of the Charging Party also did not violate Section 8(a)(1)

under this alternate theory.

Accordingly, the Region should issue a complaint, absent settlement, alleging

that the following portions of the Employer’s Policy 47 violate Section 8(a)(1): the total

ban on employees’ non-work use of email and its the prohibition on employees making

disparaging comments online about the Employer. The Region should dismiss the

remaining allegations, absent withdrawal, including those alleging that the Employer

violated Section 8(a)(1) by requiring employees to sign the Commitment to My Co-

workers document and by terminating the Charging Party.

/s/

J.L.S.

ADV.09-CA-210124.Response.WilsonHealth

62 Boeing Co., 365 NLRB No. 154, slip op. at 3–4, 15.

(b) (6), (b) (7)(C)

(b) (6), (b)

(7)(C)