Cellco Partnership d/b/a Verizon Wireless,

Docket Number:28-CA-145221
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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.

Cellco Partnership d/b/a Verizon Wireless and Sara

Parrish. Cases 28–CA–145221

February 24, 2017 DECISION AND ORDER

BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On September 18, 2015, Administrative Law Judge Mary Miller Cracraft issued the attached decision. The General Counsel and the Respondent both filed exceptions, supporting briefs, and answering briefs. The Charging Party filed cross-exceptions, a supporting brief, and a reply brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings, findings, and conclusions in part,1 to reverse them in part, and to adopt the judge’s recommended Order as modified and set forth in full below.2

The General Counsel alleges that several rules in the Respondent’s Code of Conduct are facially unlawful because employees would reasonably construe them to prohibit protected activity. The Code of Conduct, originally promulgated some time before August 2014, was revised in April 2015. The parties stipulated that most of the Respondent’s facilities now use the 2015 Code of

1 We have amended the judge’s conclusions of law consistent with our findings herein.

2 We shall modify the judge’s recommended Order to conform to our findings and to the Board’s standard remedial language. We shall substitute a new notice that conforms to the Order as modified.

The Respondent contends that a nationwide posting of a notice to employees, as well as mailing notices to employees of closed facilities who were employed at those facilities at any time since August 2014, are burdensome and inappropriate remedies. We disagree. Nationwide postings are appropriate remedies for unlawful companywide policies, see Guardsmark, LLC, 344 NLRB 809, 812 (2005) (“Concerning the scope of notice posting, we have consistently held that, where an employer’s overbroad rule is maintained as a companywide policy, we will generally order the employer to post an appropriate notice at all of its facilities where the unlawful policy has been or is in effect.”), enfd. in relevant part 475 F.3d 369 (D.C. Cir. 2007), and mailings to former employees of closed facilities is a standard Board remedy.

On December 23, 2016, the Respondent filed a motion to stay these proceedings. The Charging Party and the General Counsel filed oppositions, and the Respondent filed reply briefs. In its motion, the Respondent notes that there are two other pending cases regarding the lawfulness of the same Code of Conduct provisions, including one currently before an administrative law judge, and that the Board should decide all of the cases in one decision. We disagree and deny the Respondent’s motion. We believe that the issuance of the decision in this case will expedite the resolution of the two other cases.

Conduct, but some still use the 2014 Code of Conduct. Except for Section 1.8 Employee Privacy, all of the rules at issue here are identical in both the 2014 and 2015 versions. Thus, except for Section 1.8, our findings apply to both the 2014 version and the 2015 version.

The judge found, and we agree, that the Respondent violated Section 8(a)(1) by maintaining Section 1.6 Solicitation and Fundraising, Section 3.4.1 Prohibited Activities, and two bullet points in the Conclusion. For the reasons stated by the judge, we also agree that the 2014 version of Section 1.8 Employee Privacy violates Section 8(a)(1) of the Act. 3

The 2014 version of Section 1.8 states,

Verizon Wireless acquires and retains personal information about its employees in the normal course of operations, such as for employee identification purposes and provision of employee benefits. You must take appropriate steps to protect all personal employee information, including social security numbers, identification numbers, passwords, financial information and residential telephone numbers and addresses.

3 In evaluating the lawfulness of the Respondent’s Code of Conduct rules, we agree with the judge’s application of Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). We note our dissenting colleague’s view that the standard set forth in Lutheran Heritage should be changed. We reject that view for the reasons stated in William Beaumont Hospital, 363 NLRB No. 162, slip op. at 2–6 (2016).

In evaluating the lawfulness of the Respondent’s Code of Conduct rules restricting employees’ access to the Respondent’s email system, the judge properly applied the standard set forth in Purple Communications, Inc., 361 NLRB No. 126, slip op. at 14 (2014). Our dissenting colleague takes issue with that standard, as well. We reject his position for the reasons stated in Purple Communications. Id., slip op. at 6 fn. 18, 14–15 fn. 71.

We also agree with the judge that Section 3.4.1 unlawfully chills employees’ protected conduct in violation of Sec. 8(a)(1) of the Act. The General Counsel excepts to the judge’s failure to find that Section

3.4.1 also unlawfully prohibits employees from using the Respondent’s email, instant messaging, Intranet, or Internet systems to transmit “offensive” or “harassing” content and “chain letters,” “unauthorized mass distributions,” and “communications primarily directed to a group of employees inside the company on behalf of an outside organization.” We find merit in the General Counsel’s exception pertaining to the rule’s prohibitions on “unauthorized mass distributions” and “[c]ommunications primarily directed to a group of employees inside the company on behalf of an outside organization.” Employees would reasonably read those illustrations in the rule as restricting them from using the Respondent’s systems to engage in protected activity. Moreover, the Respondent has not shown that those restrictions are necessary to prevent interference with the efficient functioning of its systems. See Purple Communications, above, slip op. at 15 (2014). However, we find that the rule lawfully bars employees from transmitting “offensive” or “harassing” content and “chain letters” because employees would not reasonably read those terms, as they are used in the rule, to encompass protected communications.

You should never access, obtain or disclose another employee’s personal information to persons inside or outside of Verizon Wireless unless you are acting for legitimate business purposes and in accordance with applicable laws, legal process and company policies, including obtaining any approvals necessary under these policies.

While recognizing that employers have a substantial and legitimate interest in maintaining the privacy of certain business information, the judge correctly found that the employees would reasonably read the Respondent’s broadly worded rule to prohibit them from discussing their terms and conditions of employment or disclosing personal employee information. Our dissenting colleague asserts that this rule is lawful because it pertains only to the disclosure of employee information acquired and retained by the Respondent—not to personal employee information obtained in any other way. We reject that argument. First, in certain circumstances, employees have a Section 7 right to obtain the names and telephone numbers of employees from their employer’s records. See Rocky Mountain Eye Center, P.C., 363 NLRB No. 34, slip op. at 1 fn. 1, 9–11 (2015).4 Second, although the first paragraph of the rule notes that the Respondent “acquires and retains personal information about its employees” and that employees “must take appropriate steps to protect all personal employee information,” the second paragraph does not reference the preceding paragraph or use any other language that would indicate that the first paragraph limits the broad reach of the second. The second paragraph also does not include any qualifications of the term, “employee’s personal information.” Lastly, although our dissenting colleague notes some of the employee privacy safeguards in the Board’s final rule on representation-case procedures, 79 Fed. Reg. 74308 (Dec. 15, 2014), we find them inapposite to the Respondent’s rule. The representation-case procedures ensure that a nonemployer party to a representation proceeding does not abuse the voter list that, under longstanding Board law, it is given to allow it to communicate with employees regarding the election, investigate eligibility issues, and facilitate the parties’ entry into election agreements. In contrast, the Respondent’s rule is not directed at preventing the abuse of employee information by any nonemployer party. Instead, it imposes a prohibition on the employees themselves sharing other employees’ personal contact information, and therefore directly interferes with the right to communicate and engage in or-

4 Our dissenting colleague asserts that Rocky Mountain is the “exception that proves the rule” that employees’ removal of information from confidential employer files outside their normal course of work activity is not protected by the Act. Without passing on our colleague’s assertion that such a rule exists, we disagree with his claim that Section

1.8 is limited to such conduct.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

ganizational activity that lies at the heart of Section 7. Accordingly, like the judge, we find that employees would reasonably read this rule to prohibit their Section 7 right to disclose certain personal information about other employees, including their residential telephone numbers and addresses.

We also agree with the judge that, when read in context, the 2015 version of Section 1.8 is lawful, as is Section 3.3 Proper Use...

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