Cellco Partnership d/b/a Verizon Wireless

National Labor Relations Board - Board Decisions

Jul 22, 2020

369 N.L.R.B. 130 (N.L.R.B. 2020)

369 NLRB No. 130
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.
Cellco Partnership d/b/a Verizon Wireless and Com-
munications Workers of America District 9,
AFL–CIO; Communications Workers of Amer-
ica, AFL–CIO.
Airtouch Cellular and Communications Workers of
America District 9, AFL–CIO; Communications
Workers of America, AFL–CIO. Cases 21–CA–
075867, 21–CA–098442, and 21–CA–115223
July 22, 2020
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On May 15, 2020, the National Labor Relations Board
issued an Order Remanding and Notice to Show Cause in
which the Board severed and retained two complaint alle-
gations affected by the Board’s decision in Caesars Enter-
tainment d/b/a Rio All-Suites Hotel & Casino, 368 NLRB
No. 143 (2019).1 Specifically, the two retained issues are
whether the Respondents violated Section 8(a)(1) of the
Act by maintaining Section 1.6 and Section 3.4.1 of their
2014 Code of Conduct, both of which restrict employees’
use of the Respondents’ IT systems.2
In Caesars Entertainment, the Board overruled Purple
Communications, Inc., 361 NLRB 1050 (2014), and an-
nounced a new standard that applies retroactively to all
pending cases in which it is alleged that, as here, an em-
ployer violated the Act by maintaining rules restricting the
use of its IT resources for nonwork purposes. Id., slip op.
at 1–9. The Caesars Entertainment standard states, in rel-
evant part, that “an employer does not violate the Act by
restricting the nonbusiness use of its IT resources absent
proof that employees would otherwise be deprived of any
reasonable means of communicating with each other, or
proof of discrimination.” Id., slip op. at 8. Under this lim-
ited exception, employees are permitted to access their
1 The rest of the allegations were remanded to the administrative law
judge for further proceedings.
2 Sec. 1.6 prohibits “the use of company resources at any time (emails,
fax machines, computers, telephones, etc.) to solicit or distribute.” Sec.
3.4.1 prohibits employees from using the Respondent’s email, instant
messaging, Intranet, or Internet systems to transmit “offensive” or “har-
assing” 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.”
3 We find no merit in the Charging Party’s unexplained request to
recuse all Board members from this case. Insofar as the Charging Party
objects to Member Emanuel’s participation in any case applying Caesars
Entertainment, Member Emanuel addressed his participation in the
employer’s IT resources for nonbusiness use, even absent
discrimination, where the employees would otherwise be
deprived of any reasonable means of communicating with
each other. Because the parties did not previously have an
opportunity to address whether this exception to the rule
of Caesars Entertainment applies to the facts of this case,
the Board issued a notice to show cause why the retained
allegations should not be remanded to the judge for further
proceedings in light of Caesars Entertainment, including,
if necessary, the filing of statements, reopening the record,
and issuance of a supplemental decision.
The Respondents, the General Counsel, and the Charg-
ing Party filed responses to the notice to show cause, and
the Respondents also filed a reply. The Respondents op-
pose remand, asserting that it is unnecessary because the
judge had dismissed these allegations under Register
Guard, 351 NLRB 1110 (2007), precedent that the Board
reinstated in Caesars Entertainment. The General Coun-
sel asserts that the case should be remanded to the judge
for further processing, without offering any explanation in
support of this position. The Charging Party supports re-
mand in order to litigate whether the Respondents have
legitimate business justifications for the rules restricting
use of their IT systems.3 In their reply, the Respondents
note that neither the General Counsel nor the Charging
Party have contended in their responses that the Respond-
ents’ IT systems are employees’ only reasonable means of
communication or that they would put forth any evidence
or argument in support of that position if the case were
remanded.
We agree with the Respondents that remand is not ap-
propriate here and that further proceedings before the
judge would serve no purpose.4 Because there is no indi-
cation in the record that the Respondents’ employees do
not have access to other reasonable means of communica-
tion, and no party contends that the Respondents’ IT sys-
tems furnish the only reasonable means for employees to
communicate with one another, we find that the Respond-
ents did not violate Section 8(a)(1) by maintaining Sec-
tions 1.6 and 3.4.1 of their 2014 Code of Conduct. See T-
Mobile USA, Inc., 369 NLRB No. 90, slip op. at 1 (2020).
Caesars Entertainment decision itself. See 368 NLRB No. 143, slip op.
at 3 fn. 11; see also Verizon Wireless, 369 NLRB No. 108, slip op. at 1
fn. 3 (2020).
4 The Charging Party’s request for a remand in order to litigate
whether the Respondents have legitimate business justifications for the
rules restricting use of their IT systems is without merit. In Caesars En-
tertainment, the Board balanced employees’ NLRA rights and employ-
ers’ interests to establish generally that employers may lawfully restrict
employees’ nonbusiness use of their IT systems, unless the restriction is
discriminatory or there are no other reasonable means of communication
for the employees. The Board does not conduct this balance anew in
each case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ORDER
The severed and retained complaint paragraphs 5(a) and
6(c) are dismissed.
Dated, Washington, D.C. July 22, 2020
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD