Verizon New York, Inc., Empire City Subway Company (Limited), Verizon Avenue Corp., Verizon Advanced

National Labor Relations Board - Board Decisions

Jun 24, 2020

369 N.L.R.B. 108 (N.L.R.B. 2020)

369 NLRB No. 108
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.
Verizon Wireless and Communications Workers of
America, AFL–CIO
Verizon New York Inc., Empire City Subway Com-
pany (Limited), Verizon Avenue Corp., Verizon
Advanced Data Inc., Verizon Corporate Services
Corp., Verizon New England Inc., Verizon Ser-
vices Corp. and Verizon New Jersey, Inc. and
Communications Workers of America (CWA)
Verizon Pennsylvania Inc., Verizon Services Corp.,
and Verizon Corporate Services Corp. and Com-
munications Workers of America, District 2-13,
AFL–CIO, CLC
Verizon Washington, D.C. Inc., Verizon Maryland
Inc., Verizon Virginia Inc., Verizon Services
Corp., Verizon Advanced Data Inc., Verizon
South Inc. (Virginia), Verizon Corporate Ser-
vices Corp. and Verizon Delaware Inc. and Com-
munications Workers of America, District 2-13,
AFL–CIO, CLC
Verizon California Inc. and Verizon Federal Inc., Ver-
izon Florida Inc., Verizon North LLC, Verizon
Southwest Inc., Verizon Connected Solutions
Inc., Verizon Select Services Inc. and MCI Inter-
national, Inc. and Communications Workers of
America, AFL–CIO, District 9. Cases 02–CA–
156761, 02–CA–157403, 04–CA–156043, 05–CA–
156053, and 31–CA–161472
June 24, 2020
DECISION AND ORDER AND NOTICE TO
SHOW CAUSE
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
In this case, we review two decisions (or rather, one de-
cision and one order) issued by Administrative Law Judge
1 As explained below, only 3 of the 11 rules addressed by the judge
in Appendix A are currently still before the Board on exceptions to the
judge’s decision.
2 We shall construe the Charging Parties’ filings as a request for spe-
cial permission to appeal the judge’s order granting the General Coun-
sel’s motion to withdraw complaint allegations under Sec. 102.26 of the
Board’s Rules and Regulations, and the General Counsel’s and Respond-
ents’ filings as oppositions thereto. See Pueblo Sheet Metal Workers,
292 NLRB 855, 855 (1989); Consumers Distributing, 274 NLRB 346,
346 (1985).
We reject the General Counsel’s suggestion that the Charging Parties’
request for special permission to appeal was not filed “promptly,” as re-
quired by Sec. 102.26. The Charging Parties filed their request within
Donna N. Dawson. On May 25, 2017, Judge Dawson is-
sued the attached decision (Appendix A), addressing the
lawfulness of 11 work rules maintained by Verizon Wire-
less and the various Verizon Wireless Entities (the Re-
spondents) in their 2015 Code of Conduct. The judge
found 10 of the rules to be unlawful and the 11th to be
lawful. The Respondents filed exceptions and a support-
ing brief, and the Charging Parties filed cross-exceptions
and a supporting brief. The General Counsel and the
Charging Parties filed answering briefs to the Respond-
ents’ exceptions, and the Respondents filed an answering
brief to the Charging Parties’ cross-exceptions. The Re-
spondents filed reply briefs to the General Counsel’s and
Charging Parties’ answering briefs.1
After the judge issued her decision, the Board decided
Boeing Co., 365 NLRB No. 154 (2017), which changed
the standard for analyzing the lawfulness of facially neu-
tral employer rules. Consequently, on March 22, 2019,
the Board remanded most of the complaint’s allegations—
8 of the 11 rules at issue—to the judge to give the parties
the opportunity to supplement the record, while severing
and retaining the three remaining allegations for future ac-
tion by the Board. Before the judge on remand, the Gen-
eral Counsel moved to withdraw the remanded complaint
allegations based on the General Counsel’s conclusion
that the rules challenged in those allegations are lawful un-
der Boeing. On September 27, 2019, in the attached order
(Appendix B), the judge granted the General Counsel’s
motion to withdraw. The Charging Parties filed “excep-
tions” and a supporting brief, and the General Counsel and
the Respondents filed answering briefs.2
The Board has considered the judge’s original decision
and the record in light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Decision
and Order and Notice to Show Cause.3 Further, having
duly considered the Charging Parties’ appeal of the
judge’s September 27, 2019 order, we deny it in most re-
spects because we find that the judge did not act arbitrarily
or capriciously or otherwise abuse her discretion in
26 days of the judge’s ruling. There is no indication that any party has
suffered prejudice due to the 26 days that elapsed between the judge’s
ruling and the Charging Parties’ filing. In the absence of any showing of
prejudice, we regard the submission as having been filed within the re-
quirements of the rule. See Excel DPM of Arkansas, Inc., 324 NLRB
880, 880 fn. 1 (1997) (rejecting a respondent’s argument that the General
Counsel’s Motion for Summary Judgment was untimely because it was
not filed “promptly,” where the respondent did not show that it suffered
prejudice due to the lapse of 5 months between the General Counsel’s
receipt of its answer to the complaint and the filing of the motion).
3 On November 13, 2017, the Charging Parties filed a motion request-
ing that Member Emanuel recuse himself from participating in this case
because of his former affiliation with the law firm of Littler Mendelson
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
granting the General Counsel’s motion. As discussed
more fully below, however, we shall grant in part the
Charging Parties’ appeal to the extent the judge’s order
purported to rule on the three complaint allegations that
were not before her and to the extent it required the Re-
gional Director to dismiss the withdrawn allegations.
I. PROCEDURAL HISTORY
In her May 25, 2017 decision, the judge found that eight
of the challenged rules were unlawful under the “reasona-
bly construe” prong of the Board’s decision in Lutheran
Heritage Village–Livonia, 343 NLRB 646 (2004),4 and
that two additional rules were unlawful under Purple
Communications, Inc., 361 NLRB 1050 (2014).5 The
judge dismissed the allegations as to an 11th rule,6 which
the Board had previously found lawful in Cellco Partner-
ship d/b/a Verizon Wireless, 365 NLRB No. 38, slip op. at
2 (2017).7
After the issuance of the judge’s decision, the Board de-
cided Boeing, 365 NLRB No. 154, which overruled the
Lutheran Heritage “reasonably construe” prong.8 In its
place, Boeing set forth a new standard for determining
and his participation in the Jones Day defined-benefit plan. In consulta-
tion with the Board’s Designated Agency Ethics Official (DAEO), Mem-
ber Emanuel has determined not to recuse himself. Under par. 6 of the
Trump Ethics Pledge, which Member Emanuel signed as required by Ex-
ecutive Order 13770, Member Emanuel could not participate for the first
2 years of his term in cases in which his former firm, Littler Mendelson,
represented a party, or in which one of his former clients was or repre-
sented a party. Member Emanuel’s 2-year recusal period ended on Sep-
tember 26, 2019. Moreover, even before that date, recusal was not re-
quired in this case. The Respondents are not former clients of Member
Emanuel, and Littler Mendelson does not represent any party to this case.
With respect to Jones Day, which is counsel of record for the Respond-
ents, Member Emanuel’s employment ended in 2004 and is therefore
outside the scope of par. 6 of the Pledge, and his participation in his for-
mer employer’s defined-benefit plan does not require his disqualification
from this case under 18 U.S.C. § 208. Nor does Member Emanuel be-
lieve that his participation would “cause a reasonable person with
knowledge of the relevant facts to question his impartiality.” 5 C.F.R. §
2635.502.
Additionally, on December 21, 2018, in its response to the Notice to
Show Cause discussed below, the Charging Parties stated that they “d[id]
not waive [their] position that . . . [Chairman] Ring should be recused.”
And the Charging Parties except to the “failure of . . . [Chairman] Ring
to recuse [himself] from the Board’s Notice to Show Cause and Order
Remanding.” However, the Charging Parties never moved for Chairman
Ring’s recusal and identify no reason for him to do so, nor is any such
reason apparent. Thus, even if Chairman Ring were to construe the
Charging Parties’ filings as a motion for recusal, he would not recuse
himself.
4 Specifically, the Respondents’ Code of Conduct provisions entitled,
“Speak Up” and “Conclusion,” footnote 1 of the Code of Conduct, and
Code of Conduct secs. 1.8.1, 1.8.2, 2.1.3, 3.2.1, and 4.6.
5 Code of Conduct secs. 1.6 and 3.4.1.
6 Code of Conduct sec. 1.8.
7 On March 20, 2017, the judge approved the General Counsel’s mo-
tion to withdraw the allegation related to sec. 1.8. In their subsequently
submitted brief, the Charging Parties asked for reconsideration of the
whether an employer’s maintenance of a facially neutral
work rule unlawfully interferes with employees’ Section
7 rights. 365 NLRB No. 154, slip op. at 3–5. Under Boe-
ing, the Board first determines whether a challenged rule,
reasonably interpreted, would potentially interfere with
the exercise of NLRA rights. If it does not, then the Board
will find the rule lawful without further analysis. Id., slip
op. at 3, 16; accord LA Specialty Produce Co., 368 NLRB
No. 93, slip op. at 2 (2019).9 But if the rule would rea-
sonably be read to restrict Section 7 rights, then the Board
will go on to evaluate two factors: “(i) the nature and ex-
tent of the potential impact on NLRA rights, and (ii) legit-
imate justifications associated with the rule.” Boeing, 365
NLRB No. 154, slip op. at 3. In conducting this evalua-
tion, the Board will strike a proper balance between the
asserted justifications and the invasion of employee rights
in light of the Act and its policies, viewing the rule or pol-
icy from the employees’ perspective. Id.10
Because Boeing applies retroactively, and the parties
had not had the opportunity to address the lawfulness of
the rules under the new standard, the Board issued a
judge’s approval of the General Counsel’s motion. In her May 25 deci-
sion, however, the judge dismissed the allegation.
8 In Lutheran Heritage, the Board held that an employer violates Sec.
8(a)(1) of the Act “when it maintains a work rule that reasonably tends
to chill employees in the exercise of their Sec[.] 7 rights.” 343 NLRB at
646. The maintenance of a rule is unlawful if the rule explicitly restricts
activities protected by Sec. 7. Ibid. If a rule does not constitute such an
explicit restriction, its maintenance remained unlawful under Lutheran
Heritage if “(1) employees would reasonably construe the language to
prohibit Sec[.] 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[.] 7 rights.” Id. at 647.
9 The Board has designated such rules as Category 1(a). Placement
of a rule or policy in Category 1(a) does not result from balancing NLRA
rights and legitimate justifications because, by definition, this category
encompasses employer rules that do not tend to chill protected activity
and hence require no justification. See Anderson Enterprises, Inc. d/b/a
Royal Motor Sales, 369 NLRB No. 70, slip op. at 2 fn. 3 (2020).
10 As a result of this balancing, the Board places a challenged rule into
one of three categories. Category 1(b) consists of rules that are lawful to
maintain because, although the rule, reasonably interpreted, potentially
interferes with the exercise of Sec. 7 rights, the potential adverse impact
is outweighed by legitimate employer interests. Category 3, in contrast,
consists of rules that are unlawful to maintain because their potential to
interfere with the exercise of Sec. 7 rights outweighs the legitimate in-
terests they serve. Categories 1(a), 1(b), and 3 designate types of rules;
once a rule is placed in one of these categories, rules of the same type are
categorized accordingly without further case-by-case balancing (for Cat-
egory 1(b) and 3 rules; balancing is never required for rules in Category
1(a)). Some rules, however, resist designation as either always lawful or
always unlawful and instead require case-by-case analysis under Boe-
ing’s balancing framework. These rules are placed in Category 2. To be
clear, these categories “will represent a classification of results from the
Board's application of the new test. The categories are not part of the
test itself.” See Boeing, 365 NLRB No. 154, slip op. at 3–4; LA Specialty
Produce, 368 NLRB No. 93, slip op. at 2–3.
VERIZON WIRELESS 3
Notice to Show Cause why the allegations should not be
remanded. On March 22, 2019, the Board remanded the
allegations related to eight of the rules,11 and severed and
retained those related to the rules the judge had analyzed
under Purple Communications.12
Before the judge on remand, the General Counsel filed
a motion to withdraw the complaint allegations related to
the “Speak Up” and “Conclusion” provisions, footnote 1,
and sections 1.8.2, 2.1.3, 3.2.1, and 4.6,13 based on the
General Counsel’s conclusion that the rules are lawful un-
der Boeing. On September 27, 2019, the judge granted the
General Counsel’s motion.14
II. THE CHARGING PARTIES’ APPEAL OF THE JUDGE’S
APPROVAL OF THE GENERAL COUNSEL’S MOTION TO
WITHDRAW
An administrative law judge’s approval of the General
Counsel’s motion to withdraw complaint allegations is re-
viewed for abuse of discretion. E.g., Pueblo Sheet Metal
Workers, 292 NLRB 855, 855 & fn. 3 (1989). Where, as
here, a motion to approve withdrawal is based on a change
in the law, the Board does not “pass[] on the correctness”
of the judge’s interpretation of the new precedent.
Graphic Arts International Union (Mueller Color), 230
NLRB 1219, 1219 (1978); see also Greyhound Lines, Inc.,
235 NLRB 1100, 1100 fn. 1 (1978). Under our limited
scope of review, we are not passing on whether these pol-
icies are unlawful under Boeing. Instead, we are only
finding that the judge did not act arbitrarily or capriciously
or otherwise abuse her discretion by granting the motion
to withdraw the complaint allegations related to the
“Speak Up” and “Conclusion” provisions, footnote 1, and
sections 1.8, 1.8.2, 2.1.3, 3.2.1, and 4.6. Although we are
not passing on whether these policies are unlawful under
Boeing, we observe that none of these rules is comparable
to rules that the Board has previously found unlawful un-
der Boeing. Because the General Counsel is not declining
11 Specifically, the remanded allegations include those challenging the
“Speak Up” and “Conclusion” provisions, footnote 1, secs. 1.8, 1.8.2,
2.1.3, 3.2.1, and 4.6.
12 Specifically, secs. 1.6, 1.8.1, and 3.4.1. The judge found that the
portion of sec. 1.8.1 regarding monitoring of the Respondents’ IT equip-
ment and systems was lawful under Purple Communications, but that
other portions of the rule were unlawful under Lutheran Heritage.
13 Additionally, the General Counsel noted that, on May 25, 2017, the
judge had approved his motion to withdraw the allegation related to sec.
1.8.
14 The judge likewise noted that she had previously approved the Gen-
eral Counsel’s motion to withdraw the allegation related to sec. 1.8. We
shall treat the judge’s Order as reaffirming her prior approval of the Gen-
eral Counsel’s motion to withdraw the allegation.
15 The Charging Parties additionally argue that the judge abused her
discretion insofar as she ordered “that the entire consolidated complaint
be remanded to the appropriate Regional Director for DISMISSAL” (first
emphasis added). We find merit in this contention, and accordingly, we
to prosecute an obvious violation of the Act, the judge’s
decision to allow the General Counsel to withdraw these
complaint allegations was reasonable and within her dis-
cretion. Accordingly, we shall deny the Charging Parties’
appeal of the judge’s approval of the General Counsel’s
motion to withdraw those complaint allegations.15
III. THE ALLEGATIONS RETAINED BY THE BOARD
As discussed above, the Board severed and retained al-
legations related to the work rules that the judge analyzed
under Purple Communications. Under Purple Communi-
cations, the Board held that, absent special circumstances,
employees who had rightful access to their employer’s
email system had a right to use it to engage in Section 7–
protected communications on nonworking time. Purple
Communications, 361 NLRB at 1063–1064. Recently, in
Caesars Entertainment d/b/a Rio All-Suites Hotel & Ca-
sino, 368 NLRB No. 143 (2019), the Board overruled Pur-
ple Communications and announced a new standard that
applies retroactively to all pending cases alleging, as here,
that an employer unlawfully maintained a rule restricting
the use of its email system. In Caesars Entertainment, the
Board held, in relevant 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.” Id., slip op. at 8. Under Caesars Entertain-
ment, then, employees do not have a right under the Act to
use their employer’s IT resources to engage in Section 7–
related communications unless the above-stated exception
is established.16
A. The Allegations Related to Code of Conduct Sections
1.6 and 3.4.1 are Severed, and the Parties are Given No-
tice to Show Cause Why They Should not be Remanded
The judge found that sections 1.6 and 3.4.1, set forth in
the margin below,17 were unlawful under Purple
shall vacate the judge’s order to the extent that it applies to the complaint
allegations that had not been remanded to the judge and to the extent that
it requires the Regional Director to dismiss the allegations upon remand.
See Consumers Distributing, 274 NLRB at 346 fn. 1 (explaining that ap-
proval of motion to withdraw complaint allegations does “not result in
the case being closed because the underlying charge is still alive”).
16 The second exception to Caesars Entertainment—proof of discrim-
ination in restricting employees’ access to an employer’s IT resources—
is not applicable here. See id. There is no contention that the Respond-
ents discriminatorily applied their rules in this case.
17 Section 1.6 Solicitation and Fundraising
Solicitation and fundraising distract from work time productivity, may
be perceived as coercive and may be unlawful.
Solicitation during work time (defined as the work time of either the
employee making or receiving the solicitation), the distribution of non-
business literature in work areas at any time or the use of company re-
sources at any time (emails, fax machines, computers, telephones, etc.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Communications. The parties to this proceeding have not
had an opportunity to address whether the exception to the
rule of Caesars Entertainment applies to the facts of this
case. Consequently, we shall issue a Notice to Show
Cause why these allegations should not be remanded to
the judge for further proceedings in light of Caesars En-
tertainment.
B. The Allegation Related to Code of Conduct Section
1.8.1 is Dismissed
Applying Purple Communications, the judge found that
a specific portion of section 1.8.1, informing employees
that the Respondents monitor employees use of company
communications devices, computer systems and net-
works,18 did not violate the Act. Under Purple Communi-
cations, employers may lawfully “monitor their comput-
ers and email systems for legitimate management rea-
sons.” 361 NLRB at 1064. Because Caesars Entertain-
ment did not disturb this principle, there is no need to af-
ford the parties an opportunity to address whether the
holding in that case affects this complaint allegation. Ra-
ther, we shall adopt the judge’s finding that this aspect of
section 1.8.1 is lawful on its face. Because an employer
lawfully may monitor its employees’ company-issued
computers and devices for legitimate management
to solicit or distribute, is prohibited. Non-employees may not engage
in solicitation or distribution of literature on company premises. The
only exception of this policy is where the company has authorized com-
munications relating to benefits or services made available to employ-
ees by the company, company-sponsored charitable organizations or
other company-sponsored events or activities. To determine whether a
particular activity is authorized by the company, contact the VZ Com-
pliance Guideline.
Fundraising and philanthropic initiatives that refer to or use the Verizon
name, or that are organized by or directed to Verizon employees in the
workplace, must be conducted by the Verizon Foundation, and must
conform to all company standards, including this Code.
This section does not apply to political activities (addressed separately
in Section 2.2 of this Code) undertaken on Verizon’s behalf in coordi-
nation with the Public Policy, Law and Security Department or activi-
ties conducted pursuant to the Employee Resource Group Guidelines.
(Emphasis added.)
Section 3.4.1 Prohibited Activities
You may never use company systems (such as e-mail, instant messag-
ing, the Intranet or Internet) to engage in activities that are unlawful,
violate company policies or result in Verizon’s liability or embarrass-
ment. Some examples of inappropriate uses of the Internet and e-mail
include:
• Pornographic, obscene, offensive, harassing or discriminatory
content;
• Chain letters, pyramid schemes or unauthorized mass distri-
butions;
• Communications on behalf of commercial ventures;
reasons, it does not violate the Act to maintain a policy
informing employees that their company computers and
devices are subject to employer monitoring.
The judge found that another portion of section 1.8.1,
informing employees that the Respondents reserve the
right to search or monitor their personal property (includ-
ing vehicles) on company premises, was facially unlawful.
The judge reasoned that this portion of the rule was un-
lawful under Lutheran Heritage because it
would reasonably be construed to permit unlawful
search and surveillance of employees’ organizing or
other protected activities such as employees’ mainte-
nance of authorization cards, organizing literature or
lawfully collected evidence of unfair labor practices in
their vehicles or in/on other of their personal property.
The rule would also be reasonably read to restrict or in-
terfere with discussions with other employees about pro-
tected activity in their personal vehicles.
We disagree and reverse.19
Under Boeing, as clarified by LA Specialty Produce, the
inquiry into whether an employer’s rule reasonably tends
to interfere with Section 7 rights “should be determined by
reference to the perspective of an objectively reasonable
• Communications primarily directed to a group of employees in-
side the company on behalf of an outside organization;
• Gambling, auction-related materials or games;
• Large personal files containing graphic or audio material;
• Violation of others’ intellectual property rights; and
• Malicious software or instructions for compromising the com-
pany’s security.
Also, you may not send e-mail containing non-public company infor-
mation to any personal e-mail or messaging service unless authorized
to do so by your supervisor and you comply with company require-
ments relating to the encryption of information.
18 Section 1.8.1 Monitoring On the Job
In order to protect company assets, provide excellent service, ensure a
safe workplace, and to investigate improper use or access, Verizon
monitors employees’ use of Verizon’s communications devices, com-
puter systems and networks (including the use of the Internet and cor-
porate and personal web-based email accessed from Verizon devices or
systems), as permitted by law. In addition, and as permitted by law,
Verizon reserves the right to inspect, monitor and record the use of all
company property, company provided communications devices, vehi-
cles, systems and facilities - with or without notice - and to search or
monitor at any time any and all company property and any other per-
sonal property (including vehicles) on company premises.
19 Because this portion of sec. 1.8.1 does not involve computer usage,
there is no reason to remand this allegation for consideration under Cae-
sars Entertainment. We also find it unnecessary to remand this allega-
tion for consideration under Boeing as such a remand would only further
delay resolving this long-pending issue.
VERIZON WIRELESS 5
employee who is aware of his legal rights but who also
interprets work rules as they apply to the everydayness of
his job. The reasonable employee does not view every
employer policy through the prism of the NLRA.” LA
Specialty Produce, 368 NLRB No. 93, slip op. at 2 (inter-
nal quotations omitted). Consistent with this principle, we
reject the judge’s unsupported speculation that employees
would refrain from engaging in Section 7 activity merely
because evidence of such activity might be detected if
their personal property or personal vehicle were searched.
To the contrary, a reasonable employee would understand
that the purpose of the rule is, as it states, “to protect com-
pany assets, provide excellent service, ensure a safe work-
place, and to investigate improper use or access.” Moreo-
ver, the rule on its face merely “reserves the right” to
search employees’ personal property or vehicles; nothing
in its text suggests that such searches will take place, let
alone that they will occur routinely or frequently. We do
not believe that the remote prospect that a search might
someday occur would have any material impact on the ex-
ercise of Section 7 rights. See LA Specialty Produce, 368
NLRB No. 93, slip op. at 2 (“[A] challenged rule may not
be found unlawful merely because it could be interpreted,
under some hypothetical scenario, as potentially limiting
some type of Sec[.] 7 activity . . . .”). And we do not share
the judge’s speculation that this rule might be interpreted
to expose Section 7–related discussions inside employees’
vehicles to employer eavesdropping.
Assuming the rule would be reasonably interpreted to
interfere with the exercise of Section 7 rights, the Board
must still consider the legitimate justifications for the rule
and “strike the proper balance between . . . asserted busi-
ness justifications and the invasion of employee rights in
light of the Act and its policy.” Boeing, 365 NLRB No.
154, slip op. at 3 (quoting NLRB v. Great Dane Trailers,
Inc., 388 U.S. 26, 33–34 (1967)) (emphasis omitted).
Here, any minimal impact on Section 7 activity would be
far outweighed by the obviously legitimate interest em-
ployers have in conducting such searches, when neces-
sary, to prevent theft or other loss of assets and to ensure
a safe workplace. In light of the legal liability employers
may face in the event of a workplace injury and the eco-
nomic consequences of theft, we find that these interests
are compelling.20 We therefore find that a rule notifying
employees that their employer may search their personal
property on its premises is a Category 1(b) rule under Boe-
ing.
20 See 29 U.S.C. § 654(a)(1) (employer “shall furnish to each of his
employees employment and a place of employment which are free from
recognized hazards that are causing or are likely to cause death or serious
physical harm to his employees”); 2018 National Retail Security Survey,
ORDER
IT IS ORDERED that the Charging Parties’ appeal of the
judge’s approval of the General Counsel’s motions to
withdraw the complaint allegations related to the Code of
Conduct provisions entitled “Speak Up” and “Conclu-
sion,” footnote 1 of the Code of Conduct, and Code of
Conduct sections 1.8, 1.8.2, 2.1.3, 3.2.1, and 4.6 is denied.
IT IS FURTHER ORDERED that the Charging Parties’ ap-
peal of the judge’s order is granted to the extent the
judge’s order purports to approve the withdrawal of the
complaint allegations related to Code of Conduct sections
1.6, 1.8.1, and 3.4.1 and/or requires the dismissal of com-
plaint allegations upon remand to the regional director.
IT IS FURTHER ORDERED that the complaint allegations
involving sections 1.6 and 3.4.1 of the Respondents’ Code
of Conduct shall be severed and retained.
Further, NOTICE IS GIVEN that cause be shown, in writ-
ing, filed with the Board in Washington, D.C., on or July
8, 2020 [14 days from the date of this notice] (with affida-
vit of service on the parties to this proceeding), why the
complaint allegations involving sections 1.6 and 3.4.1 of
the Respondents’ Code of Conduct should not be re-
manded to the administrative law judge for further pro-
ceedings consistent with the Board’s decision in Caesars
Entertainment, including reopening the record if neces-
sary. Any response should also address whether remand
to the judge would be appropriate for further proceedings
in light of Boeing, including reopening the record if nec-
essary. Any briefs or statements in support of the response
shall be filed on the same date.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
remanded to the regional director or severed and retained.
Dated, Washington, D.C. June 24, 2020
John F. Ring, Chairman
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
https://cdn.nrf.com/sites/default/files/2018-10/NRF-NRSS-Industry-
Research-Survey-2018.pdf (last visited May 28, 2020) (shrinkage cost
retailers $46.8 billion in 2017, with 33.2 % of shrinkage due to employ-
ees).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
APPENDIX A
Julie Polakoski-Rennie, Esq., for the General Counsel.
E. Michael Rossman, Esq. and Elizabeth L. Dicus, Esq.,
for the Respondents.
David A. Rosenfeld, Esq., for the Charging Parties.
DECISION
STATEMENT OF THE CASE
DONNA N. DAWSON, Administrative Law Judge. The Charg-
ing Parties, consisting of Communication Workers of American
and its named Districts (the Union) filed charges and amend-
ments thereto on various dates ranging from July 15, 2015
through October 20, 2016. Pursuant to those charges, the Gen-
eral Counsel ultimately issued an order consolidating cases, con-
solidated complaint and notice of hearing (on Oct. 31, 2016) and
an order further consolidating cases (on Nov. 4, 2016) against
Verizon Wireless and the various Verizon Wireless Entities (re-
ferred to collectively as Respondents or Verizon). The consoli-
dated complaint alleges that since on about April 29, 2015, Re-
spondents have maintained various rules in their Code of Con-
duct employee manual which interfere with, restrain, and coerce
employees in the exercise of their Section 7 rights in violation of
Section 8(a)(1) of the Act. Respondents have denied the allega-
tions; however, I have found that they have violated the Act, as
alleged, regarding most of the challenged rules.
I issued an order granting the General Counsel’s and Respond-
ents’ joint motion to submit these cases for a decision on stipu-
lation of facts, thus waiving a hearing under Section 102.35(a)(9)
of the NLRB’s Rules and Regulations. 1 In doing so, I concluded
that the Union’s objections to deciding these consolidated cases
on a stipulated record were without merit because the Union
sought to present testimonial evidence on issues not raised in the
complaint or not in dispute.
On the entire record, including the stipulated facts and exhib-
its, as well as objections thereto, and after considering the briefs
filed by the parties,2 I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondents are corporations with offices and places of busi-
ness in varying locations throughout the United States, and have
been engaged in the business of providing wireless telecommu-
nication services in their facilities throughout the United States.
In conducting their business operations, they (individually and
collectively) annually derive gross revenues in excess of
$500,000, and purchase and receive at their facilities goods val-
ued in excess of $5000 directly from points outside of the respec-
tive states in which they operate. Respondents admit, and I find,
that at all material times, they have been employers engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the
1 On January 23, 2017, I opened the record telephonically, heard the
parties’ various arguments for and against a stipulated record, considered
all written submissions and granted the joint motion over the Union’s
objections. (Tr. 6–24; 25–28.)
2 On April 7, 2017, Respondents filed a Motion for Leave to File
Reply Briefs in Support of their Posthearing Brief. Absent objections by
Act.
It is further admitted, and I find, that each of the named Charg-
ing Party Unions have been labor organizations within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Stipulated Facts and Challenged Rules
Since about April 29, 2015, and continuing to date, Respond-
ents have maintained (but not enforced) the same Code of Con-
duct applicable to their employees. The Code of Conduct is
made available to Respondents’ employees, and maintained in
electronic format.3 The Code of Conduct provisions at issue in-
clude the “Speak Up” (reporting section); footnote 1 on page 10
(compliance language); section 1.6 Solicitation and Fundraising;
section 1.8 Employee Privacy; section 1.8.1 Monitoring on the
Job; section 1.8.2 Use of Recording Devices; section 2.1.3 Ac-
tivities Outside of Verizon; section 3.2.1 Protecting Non-public
Company Information; section 3.4.1 Prohibited Activities; sec-
tion 4.6 Relationships with and Obligations of Departing and
Former Employees; and two of the examples of actions consid-
ered illegal or unacceptable by Respondents in the Conclusion.
They will each be set forth fully as alleged and addressed below
in the analysis.
III. DISCUSSION AND ANALYSIS
A. Legal Standards
Section 7 of the Act provides that:
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and shall also have
the right to refrain from any or all of such activities.
Under Section 8(a)(1) of the Act, it is unlawful for an employer
to interfere with, restrain or coerce employees in the exercise of
their Section 7 rights. The Board has long recognized the right
of employees to communicate in the workplace, which includes
the right to discuss with each other hours, wages and other work
place terms and conditions of employment. Parexel Inerna-
tional, LLC, 356 NLRB 516, 518 (2011), citing Aroostook
County Regional Ophthalmology Center, 317 NLRB 218, 220
(1995), enfd. in part 81 F.3d 209 (D.C. Cir. 1996). As such, the
Board has held that “[a]n employer violates Section 8(a)(1) of
the Act when it maintains a work rule that reasonably tends to
chill employees in the exercise of their Section 7 rights.” Hyun-
dai America Shipping Agency, 357 NLRB 860, 861 (2011), enfd.
in relevant part 805 F.3d 309 (D.C. Cir. 2015); Lafayette Park
Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir.
1999). Where this is the case, maintenance of the rule may be
deemed unlawful even absent any evidence of enforcement.
the other parties, and within my discretion, I have read and considered
those submissions in making this decision.
3 A complete copy of the Code of Conduct is contained in Jt. Exh.
KK.
VERIZON WIRELESS 7
Lafayette Park Hotel, above at 825.
Under the framework in Lutheran Heritage Village-Livonia,
343 NLRB 646, 647 (2004), a work rule that explicitly limits
Section 7 rights is unlawful. Id. at 646–647. If the rule does not
explicitly restrict Section 7 protected activity, the General Coun-
sel may establish a violation by showing one of the following:
“(1) employees would reasonably construe the language to pro-
hibit Section 7 activity; (2) the rule was promulgated in response
to union activity; or (3) the rule has been applied to restrict the
exercise of Section 7 rights.” Id. A rule must be given a reason-
able reading, however, and particular phrases must not be read
in isolation. Lafayette Park Hotel, above at 825, 827. The Board
has explained that where an employer does not intend for a rule
to extend to or prohibit protected activity, the employer’s lawful
intent must be “clearly communicated to the employees.” Id. at
828. Further, it is well settled that “any ambiguity in a rule must
be construed against the Respondent as the promulgator of the
rule.” Id., citing Norris/O’Bannon, 307 NLRB 1236, 1245
(1992).
In the instant case, the General Counsel has mostly alleged
that the challenged rules are unduly ambiguous and/or overly
broad such that they would chill employees in the exercise of
their Section 7 rights.4 Therefore, the primary inquiry is whether
employees would reasonably construe the language in them to
prohibit Section 7 activity.
B. Alleged Unlawful Code of Conduct Provisions5
a. Speak Up
Do the Right Thing Because it’s the Right Thing to Do
. . .
You must report suspected and actual violations of this Code,
company policy and the law. Verizon will investigate reported
instances of questionable or unethical behavior.
In deciding whether a violation of the Code has occurred or is
about to occur, you should first ask yourself:
 Could this conduct be viewed as dishonest, un-
ethical or unlawful?
 Could this conduct hurt Verizon? Could it cause
Verizon to lose credibility with its customers,
business providers or investors?
 Could this conduct hurt other people, such as
other employees, investors or customers?
If the answer to any of these questions is ‘yes’ or even ‘maybe,’
you have identified a potential issue that you must report.
These are essentially the reporting and compliance require-
ments of the Code. Contrary to Respondents’ argument that this
part of the Code is not a “substantive” rule and therefore is law-
ful, I find that it is unlawful even when read in context with other
parts of the Code that Respondents believe to be “substantive.”
The General Counsel and the Union allege that the “Speak Up”
provision is overbroad and infringes upon employees’ Section 7
right “to criticize or protest” the employer’s labor practices.
4 There is no allegation that the rules were promulgated in response
to union activity.
Respondents also argue that this part of the Code is lawful, rely-
ing on the Board’s Division of Advice guidance on such matters.
Respondents claim that the entire Code provides context to this
section by mentioning several types of prohibited conduct that
the “Speak Up” provision addresses such as discrimination and
harassment, workplace violence, insider trading, violation of
others’ intellectual property rights and bribes, kickbacks and un-
lawful loans.
These requirements are unlawful, as they would reasonably be
understood as precluding employee participation in union or
other protected activities. Respondents demand that employees
report suspected and actual violations of the Code. However, the
employer has not defined what it would consider to be “dishon-
est, unethical or unlawful” conduct. Further, under the second
bullet, conduct which could potentially hurt Verizon or cause it
“to lose credibility with its customers, business providers or in-
vestors” would also reasonably include protected activity, in-
cluding employees discussing among themselves wages and
other terms and conditions of their employment, or complaining
about allegedly discriminatory treatment by a supervisor. This
overly broad language “fails to explain what would be permissi-
ble conduct, leaving it up to the employees to guess,” even “at
their own peril.” Roomstores of Phoenix, LLC, 347 NLRB 1690,
1704 (2011). Employees with Section 7 rights to engage in pro-
tected activities, “whose activities may potentially ‘conflict’
with the Employer, should not have to fear running afoul of the
rules of conduct and being subject to discipline.” Id. This rule
would also reasonably be construed to include protected state-
ments made without a reckless disregard for the truth or mali-
cious intent to be untruthful. See Chipotle Services, LLC d/b/a
Chipotle Mexican Grill, 364 NLRB No. 72, slip op. at 1 fn. 3 and
9 (2016) (finding non-disparagement rule unlawful); Grill Con-
cepts Services, 364 NLRB No. 36, slip op. at 23–24 (2016); Wil-
liam Beaumont Hospital, 363 NLRB No. 162, slip op. at 2 (2016)
(restrictions on negative or disparaging comments would reason-
ably be construed to limit Section 7 protected activities); Room-
stores of Phoenix, LLC, above at 1704 (employee conduct dis-
paraging management officials or the business is protected if re-
lated to employee interests or working conditions and not egre-
gious in nature).
Similarly, the requirement to report behavior which would
hurt others, without qualifications, is unlawful. The Board has
held that when a rule fails to provide “accompanying language
that would tend to restrict its application,” employees would rea-
sonably assume that their protected activities (such as those ex-
amples set forth above) are included in the prohibition. Lily
Transportation Corp., 362 NLRB 406, 406 fn. 3 (2015).
As stated, other parts of the Code do not bring this provision
into context. Other of the Code sections do speak to conduct that
is unlawful or in violation of company policies, such as 1.2 (anti-
discrimination and harassment zero tolerance policy); 1.3 (zero
tolerance workplace violence and abusive behavior policy); 2.3
(policy against insider trading of “material inside information”
about Verizon or companies with which Verizon does business,
including “a company’s [non-public] business, financial
5 See Jt. Exh. 1, pp. 14–19 (pars. 9(a)–(k)); GC Exh. 1 (bb) (pars.
5(a)–(k)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
prospects, regulatory or legal matters, or management issues . .
.”); 3.6 (policy to safeguard Verizon’s intellectual property); and
4.5 (anti-bribe, kickback and loan policy). (Jt. Exh. KK, pp. 11,
17, 23, and 29). However, there is nothing in the “Speak Up”
provision that limits what employees must consider in deciding
to report or that leads employees to those other sections. In other
words, Respondents have not sufficiently explained their lawful
intent for this rule, and any ambiguity must be construed against
them. Lafayette Park Hotel, above at 828 and Norris/O’Bannon,
above at 1245.
Finally, regarding the reporting requirement, when a rule in-
terferes with employees’ Section 7 activities, a requirement to
report violations also violates the Act. See generally UMPC, 362
NLRB 1704, 1708 (2015). Therefore, I find that this section of
Respondents’ Code of Conduct is so broadly written such that it
violates Section 8(a)(1) of the Act.
b. Footnote 1 located on page 10 of the Code, which states:
You are required to comply with this Code as a condition of
continued employment. This Code does not give you rights of
any kind, and may be changed by the company at any time
without notice to you.
. . .
I agree with the General Counsel that this footnote violates the
Act because Respondents’ employees would reasonably read it
to permit Respondents to unilaterally change this Code without
notice to the Union, and “undermine the Union’s bargaining rep-
resentative status.” (GC Br. at 18.) In addition, I find the lan-
guage in this footnote, even when read in context with other sec-
tions, tells employees that they have no rights, which would rea-
sonably lead them to believe, without further qualification, that
they would not have any Section 7 protected rights under the Act.
The General Counsel asserts that the Board found unlawful a
similar handbook provision in Heck’s, Inc., 293 NLRB 1111
(1989). In Heck’s, the Board determined that the employer uni-
laterally issued an employee handbook and, “[m]oreover,” in-
cluded terms which reserved its right to make future unilateral
changes to the provisions therein, “including those that are man-
datory subjects of bargaining.” Thus, the Board concluded that
such conduct violated Section 8(a)(5) and (1) of the Act, as al-
leged, because it “disparages the collective-bargaining process
and improperly undermines the status of the Union as the desig-
nated and recognized collective-bargaining representative of
[its] employees.” Heck’s, above at 1118.
Respondents, on the other hand, argue that this footnote lan-
guage does not in any way circumvent the collective-bargaining
process, but simply informs employees that they will not provide
each one with “personalized notice” before changing the Code.
They further describe this footnote as a “boilerplate disclaimer,”
and a lawful at-will statement and feature of almost any hand-
book. They rely on the Board’s Division of Advice memoranda
(declining to find that employment-at-will provisions violate the
Act) and the Board’s decision in T-Mobile USA, Inc. 365 NLRB
No. 23 (2017) to support their position. In T-Mobile USA, the
6 See R. Br. at 17–18, citing several Board Division of Advice mem-
oranda.
Board affirmed the judge’s finding that a company’s modifica-
tion in its handbook, to include a statement that its employees
were at-will employees who could be terminated at any time,
would not reasonably be read to restrict Section 7 activity. Id.
Similarly, the Board found that such language did not communi-
cate to the union or employees that the revision intended to nul-
lify any terms of the existing collective-bargaining agreement.
Id. at 9.
However, the footnote provision here is not an employment-
at-will policy such as those at issue in the Board’s advice mem-
oranda cited in Respondents’ brief or at issue in T-Mobile USA.6
Rather, it includes overly broad, unqualified, ambiguous lan-
guage that employees would tend to reasonably construe to cir-
cumvent the Union’s representational rights, and chill them in
the exercise of their basic Section 7 rights, such as being able to
freely and effectively communicate with each other at work re-
garding self-organization and other terms and conditions of em-
ployment. Therefore, this provision violates Section 8(a)(1) of
the Act.
c. Section 1.6 Solicitation and Fundraising
Solicitation and fundraising distract from work time productiv-
ity, may be perceived as coercive and may be unlawful.
Solicitation during work time (defined as the work time of ei-
ther the employee making or receiving the solicitation), the dis-
tribution of non-business literature in work areas at any time or
the use of company resources at any time (emails, fax ma-
chines, computers, telephones, etc.) to solicit or distribute, is
prohibited. Non-employees may not engage in solicitation or
distribution of literature on company premises. The only ex-
ception of this policy is where the company has authorized
communications relating to benefits or services made available
to employees by the company, company-sponsored charitable
organizations or other company-sponsored charitable organi-
zations or other company-sponsored events or activities. To
determine whether a particular activity is authorized by the
company, contact the VZ Compliance Guideline.
Fundraising and philanthropic initiatives that refer to or use the
Verizon name, or that are organized by or directed to Verizon
employees in the workplace, must be conducted by the Verizon
Foundation, and must conform to all company standards, in-
cluding this Code.
This section does not apply to political activities (addressed
separately in Section 2.2 of this Code) undertaken on Verizon’s
behalf in coordination with the Public Policy, Law and Security
Department or activities conducted pursuant to the Employee
Resource Group Guidelines.
I find that this provision is unlawful, ambiguous and overly
broad. Recently, the Board established a standard for determin-
ing the lawfulness of an employer’s rule restricting employee use
of a company’s email system. See Purple Communications, Inc.
(I), 361 NLRB 1050, 1063 (2014); Purple Communications (II),
365 NLRB No. 50 (2017). In Purple Communications I, the
VERIZON WIRELESS 9
Board held that:
[W]e will presume that employees who have rightful access to
their employer’s email system in the course of their work have
a right to use the email system to engage in Section 7-protected
communications on nonworking time. An employer may rebut
the presumption by demonstrating that special circumstances
necessary to maintain production or discipline justify restrict-
ing its employees’ rights.
Id. Thus, the Board overruled Register Guard, 351 NLRB 1110
(2007) (permitting a complete ban on employee use of a com-
pany’s email systems for Section 7 activities, provided employ-
ers did not discriminatorily apply the ban), enfd. in relevant part
and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53
(D.C. Cir. 2009).7 The Board in Purple Communications I
adopted their presumption from that set forth in Republic Avia-
tion, 324 U.S. 793 (1945).8
Further, the Purple Communications Board described email
communications and systems as follows:
[A]n email system is a forum for communication, and the indi-
vidual messages sent and received via email may, depending
on their content and context, constitute solicitation, literature
(i.e., information) distribution, or--as we expect would most of-
ten be true--merely communications that are neither solicita-
tion nor distribution, but that nevertheless constitute protected
activity . . . In the vast majority of cases, an employer’s email
system will amount to a mixed-use area, in which the work-
area restrictions permitted on literature distribution generally
will not apply.
Purple Communications I, above at 1062, citing e.g., United
Parcel Service, 327 NLRB 317, 317 (1998). In sum, the Board
concluded that the “Register Guard analysis’ failure to ‘adapt the
Act to changing patterns of industrial life’ was unsupported by
the legal precedents on which it relied. Purple Communications,
above at 1050 fn. 6 (quoting Hudgens v. NLRB, 424 U.S. 507,
523 (1976), and citing NLRB v. J. Weingarten, Inc., 420 U.S.
251, at 266 (1975)).9 The Board’s analysis in Purple Communi-
cations I applies only to employers’ email systems, employees
who have access to those systems during the course of their
work, and the employees’ right to use those systems for protected
activities during nonworking time. I agree with the Union’s as-
sertion that the employees’ right to use these email systems to
engage in protected activity should naturally extend to the com-
puter or cellular devices that the employees use at work to access
the systems, and the communications transmitted through them.
Moreover, the Board affirmed its position in Purple Commu-
nications I and applied it to the Respondents’ same section 1.6
7 In doing so, the Board determined that the Register Guard decision
gave too much weight to employers’ property rights and too little to “the
importance of email as a means by which employees engage in protected
[workplace] communications.” Purple Communications I, above, at
1054.
8 In Republic Aviation, the Supreme Court found that an employer’s
“ban on oral solicitation on employees’ nonworking time was ‘an unrea-
sonable impediment to self-organization,’ and that a restriction on such
activity must be justified by ‘special circumstances’ making the re-
striction necessary in order to ‘maintain production or discipline.’”
solicitation and fundraising policy at issue here. In doing so, it
affirmed the judge’s finding that this policy was unlawfully
overly broad as it would reasonably be understood by Respond-
ents’ employees to chill the exercise of their Section 7 rights.
See Cellco Partnership d/b/a Verizon Wireless, 365 NLRB No.
38 (2017), slip op. at 1, 13 and 14. Respondents’ rule in this case
expressly prohibits use of all company resources, including
email systems, to solicit or distribute at any time. It is undisputed
that Respondents permitted their employees to use their email
systems in the course of their work in order to receive or access
information such as the Code of Conduct. Therefore, I find that
in this case, as in Verizon Wireless, above, employees presuma-
bly have a right to use Respondents’ email systems for Section 7
activities during nonworking time. I further find that Respond-
ents have not provided any special circumstances to rebut this
presumption. Respondents adopt the dissenting opinion and ar-
gue that Purple Communications should be overruled, and that
Register-Guard should be reinstated. However, I am bound to
follow current Board law unless or until it has been reversed by
the Supreme Court. See Pathmark Stores, 342 NLRB 378, 378
fn. 1 (2004); Hebert Industrial Insulation Corp., 312 NLRB 602,
608 (1993); Lumber & Mill Employers Assn., 265 NLRB 199,
199 fn. 2 (1982), enfd. 736 F.2d 507 (9th Cir. 1984), cert. denied
469 U.S. 934 (1984).
Further, this rule which implicates both solicitation and distri-
bution fails to sufficiently define or describe them or work areas
in which they might occur. As such, an employee would reason-
ably understand this rule to preclude him or her from merely ask-
ing a fellow employee to attend a meeting about wages, hours or
other terms and conditions of employment, or even discussing
such matters, or distributing authorization cards during non-
working times in a break area. While an employer may ban so-
licitation in work areas during actual worktime, an employer
may not extend the ban to work areas during nonworking time.
UPS Supply Chain Solutions, Inc., 357 NLRB 1295, 1296
(2011); Our Way, 268 NLRB 394, 394–395 (1983). There is no
evidence that Respondents defined work areas or made it clear
to employees that this rule does not extend to solicitation and
distribution in nonworking areas (e.g. break rooms, cafeteria,
etc.) during their own time. Therefore, this rule against solicita-
tion and distribution unlawfully prohibits Section 7 activity and
violates Section 8(a)(1) of the Act. See Verizon Wireless, above.
d. Section 1.8 Employee Privacy
You must take appropriate steps to protect confidential per-
sonal employee information, including social security num-
bers, identification numbers, passwords, bank account infor-
mation and medical information. You should never access or
Purple Communications I, above 1055–1056, quoting in part Republic
Aviation, above at 803–804.
9 The Board also emphasized how in the workplace, “email has ef-
fectively become a ‘natural gathering place,’ pervasively used for em-
ployee-to-employee conversations.” Purple Communications I, above at
1057, citing Beth Israel Hospital v. NLRB, 437 U.S. 483, 505 (1978), and
Martin H. Malin & Henry H. Perritt Jr., The National Labor Relations
Act in Cyberspace: Union Organizing in Electronic Workplaces, 49 U.
Kan. L. Rev. 1, 17 (Nov. 2000).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
obtain, and may not disclose outside of Verizon, another em-
ployee’s personal information obtained from Verizon business
records or systems unless you are acting for legitimate business
purposes and in accordance with applicable laws, legal process
and company policies, including obtaining any approvals nec-
essary under those policies.
Over the Union’s objection, I granted the General Counsel’s
motion to dismiss the allegations concerning this rule, relying on
the Board’s finding in Verizon Wireless, above slip op. at 2,
which affirmed the judge’s determination that this provision in
Respondents’ 2015 Code of Conduct was lawful.1010 In this in-
stance, the Charging Party argues that the Board’s finding was
misplaced. However, as stated above, I am bound to follow
Board precedent that has not been overturned by the Supreme
Court. Pathmark Stores, 342 NLRB 378. Therefore, the allega-
tions pertaining to this rule (pars. 6(d), initial complaint, and par.
5(d), consolidated complaint) are dismissed. (GC Exhs. 1(w),
1(bb).)
e. Section 1.8.1 Monitoring On the Job
In order to protect company assets, provide excellent service,
ensure a safe workplace, and to investigate improper use or ac-
cess, Verizon monitors employees’ use of Verizon’s commu-
nications devices, computer systems and networks (including
the use of the Internet and corporate and personal web-based
email accessed from Verizon devices or systems), as permitted
by law. In addition, and as permitted by law, Verizon reserves
the right to inspect, monitor and record the use of all company
property, company provided communications devices, vehi-
cles, systems and facilities—with or without notice—and to
search or monitor at any time any and all company property
and any other personal property (including vehicles) on com-
pany premises.
In Purple Communications I, 361 NLRB 1050, the majority
explained that their decision “does not prevent employers from
continuing . . . to monitor their computers and email systems for
legitimate management reasons, such as ensuring productivity
and preventing email use for purposes of harassment or other ac-
tivities that could give rise to employer liability.” Id. at 1050,
1060. However, this rule’s language permitting the employers
to search employees’ personal property, including vehicles, on
company property with or without notice, and apparently with or
without cause, is overly broad and far reaching. Therefore, I
agree with the General Counsel and the Union that the rule fails
to provide any qualification in this regard and would reasonably
be understood by employees to restrict protected activity. More
specifically, it would reasonably be construed to permit unlawful
search and surveillance of employees’ organizing or other pro-
tected activities such as employees’ maintenance of authoriza-
tion cards, organizing literature or lawfully collected evidence of
unfair labor practices in their vehicles or in/on other of their per-
sonal property. The rule would also be reasonably read to restrict
10 The Board reasoned that this provision was sufficiently narrow, re-
lying on the fact that it “specifically lists the type of confidential infor-
mation covered to include social security numbers, identification num-
bers, passwords, bank account information, and medical information,”
and excluded language pertaining to “personal employee contact
or interfere with discussions with other employees about pro-
tected activity in their personal vehicles. Therefore, due to the
chilling effects of this rule on protected Section 7 activity, I find
that it violates Section 8(a)(1) of the Act. See Lutheran Heritage
Village-Livonia, 343 NLRB 646 at 646.
I find that Respondents’ arguments in this regard, relying on
various Division of Advice memoranda, etc. are without merit.
f. Section 1.8.2 Use of Recording Devices
In many jurisdictions, use of recording devices without the con-
sent of both parties is unlawful. Unless you are participating in
an approved observation program or you have obtained prior
approval from Security or the Legal Department, you may not
record, photograph, or videotape another employee while the
employee is at work or engaged in business activities or access
another employee’s systems, records or equipment without that
employee’s knowledge and approval. In addition, unless you
receive prior approval from the Legal Department, you may
never record, photograph or videotape any customer, business
provider or competitor without that person’s knowledge and
approval.
I also agree with the General Counsel’s contention that this
rule, which precludes employees from engaging in unauthorized
recording, photographing or videotaping of other employees
without their knowledge and approval, restricts them in the fur-
therance of their Section 7 protected activity. It does so, as the
General Counsel and Union argue, by interfering with employ-
ees’ ability to obtain evidence of and document unfair labor prac-
tices at work or during nonworking time. Thus, I find Respond-
ents’ argument that the other parties have “missed the mark,” has
missed the mark. (R. Br.)
In recent decisions, the Board has found that employer rules
broadly prohibiting employees from recording in the work place
(which would include “at work”) on their own time and in non-
working areas would reasonably be construed to limit Section 7
activity in violation of Section 8(a)(1) of the Act. See T-Mobile
USA, Inc., 363 NLRB No. 171, slip op. at 3 (2016), citing Cae-
sars Entertainment Corp. d/b/a Rio All-Suites Hotel & Casino,
362 NLRB 1690, 1693 (2015), and Whole Foods Market, 363
NLRB No. 87, slip op. at 4 fn. 11 (2015).11 The Board has held
that a rule prohibiting the recording of conversations, phone
calls, images or company meetings with a camera or recording
device without prior management authorization is unlawful.
Whole Foods Market, above, slip op. at 3, citing Rio All-Suites
Hotel & Casino, above at 1693. In Whole Foods Market, the
Board concluded that “[p]hotography and audio or video record-
ing in the workplace, as well as the posting of photographs and
recordings on social media, are protected by Section 7 if employ-
ees are acting in concert for their mutual aid and protection and
no overriding employer interest is present.” Whole Foods Mar-
ket, slip op. at 3. The Board listed several examples of protected
conduct, including but not limited to documenting unsafe and
information, such as residential telephone numbers and addresses, or any
personal or other documents pertaining to employees’ terms and condi-
tions of employment.” Verizon Wireless, above, slip op. at 2 fn. 5.
11 Also see Rio All-Suites Hotel & Casino, above (photographing and
videotaping in the workplace can be Sec. 7 protected activity).
VERIZON WIRELESS 11
hazardous working conditions, “documenting and publicizing
discussions about terms and conditions of employment,” docu-
menting discriminatory implementation of work rules or “re-
cording it for later use in administrative or judicial forums in em-
ployment-related actions.” Id. Further, the Board recognized
that unauthorized recordings or videotapes, including those rec-
orded without knowledge and consent, are generally acceptable
and often “essential . . . in vindicating the underlying Section 7
right . . . under certain circumstances.” Id. The Board pointed
out that an employer’s policies against recordings violate the Act
when they “do not differentiate between recordings protected by
Section 7 and those that are unprotected;” it rejected the em-
ployer’s defenses that it intended the rule to “promote open com-
munication and dialogue” and to protect Section 7 activity. Id.
Finally, the Whole Foods Market Board distinguished the em-
ployer’s rationale from that posited in Flagstaff Medical Center,
357 NLRB 659 (2011), enfd. in relevant part 715 F.3d 928 (D.C.
Cir. 2013), as the reasons for privacy protection were “based on
relatively narrow circumstances,” and “not nearly as pervasive
or compelling as the hospital patient privacy interests in Flag-
staff.”12 Id. at 3–4.
Although the rule in the instant case appears to allow record-
ing and videotaping of other employees with their consent, I find
that this limitation does make it lawful. Nor does the language,
“while the employee is at work or engaged in business activi-
ties,” sufficiently qualify the rule to make it lawful. In Whole
Foods Market and Rio All-Suites Hotel & Casino, above, the
rules were not similarly qualified, but rather prohibited all work-
place audio or video recording without prior authorization.
However, the Board’s primary concern with the rules in those
cases centered on employees not being able to document poten-
tial unfair labor practices, and the fact that the rules broadly pro-
hibited all such activity whether or not it was protected and con-
certed. Similarly, in this case, Respondents have broadly pro-
hibited unauthorized recordings, without consent of the individ-
ual(s) being recorded, without making any distinction between
activity which is protected and that which is not. As stated, the
Board acknowledged that “our case law is replete with examples
where photography or recording, often covert, was an essential
element in vindicating the underlying Section 7 right.” Whole
Foods Market, above slip op. at 3.13
Respondents attempt to distinguish the findings in recent
Board cases, such as those cited above, from the instant case in
that the rules in those cases did not expressly state that their pur-
pose was compliance with state law. I reject this argument and
find that if this was in fact Respondents’ intent in the instant case,
12 In Flagstaff Medical Center, above, the Board found lawful an em-
ployer rule prohibiting the use of cameras in a hospital setting since the
patient privacy interests and obligations would lead employees to rea-
sonably interpret the policy as a legitimate method to protect those inter-
ests rather than a means of restricting protective activity.
13 Whole Foods Market, above slip op. at 4 fn. 8 and cited cases, e.g.,
Times-Herald Record, 334 NLRB 350, 354 (2001) (“surreptitious audio
recording of meeting at which employer unlawfully threatened employ-
ees admissible in Board proceeding”), enfd. 27 Fed.Appx. 64 (2d Cir.
2001); Painting Co., 330 NLRB 1000, 1003 (2000) (“covert recording
supported allegation that employer unlawfully threatened to close the
company”), enfd. 298 F.3d 492 (6th Cir. 2002); Arrow Flint Electric Co.,
then they would not have limited the use of the devices in all
states since it is in fact lawful in many states in which they do
business to record or videotape individuals without their con-
sent.14 Further, it is not clear from a reasonable reading of the
rule that its purpose is to maintain compliance with state law.
Therefore, I find that this rule violates Section 8(a)(1) of the Act.
g. Section 2.1.3 Activities Outside of Verizon
Many employees participate in an individual capacity in out-
side organizations (such as their local school board or home-
owners’ association). Memberships in these associations can
cause conflicts if they require decisions regarding Verizon or
its products. If you are a member of an outside organization,
you must remove yourself from discussing or voting on any
matter that involves the interests of Verizon or its competitors.
You must also disclose this conflict to your outside organiza-
tion without discussing non-public company information and
you must disclose any such potential conflict to the VZ Com-
pliance Guideline. Participation in any outside organization
should not interfere with your work for Verizon. To the extent
that your participation infringes on company time or involves
the use of Verizon resources, your supervisor’s approval is re-
quired.
If you serve or are seeking to serve as a representative of Veri-
zon on a board or committee of any outside organization, you
must obtain the prior approval of your vice president level or
above supervisor, and the Ethics Office.
If you serve on a Board of Directors of a public corporation,
you must obtain prior approval from both your vice president
level or above supervisor and your organization’s president or
executive vice president, and the Ethics Office. Service on the
Board of Directors of a non-public corporation must be ap-
proved by the Ethics Office.
The Board has already spoken on this specific rule, and con-
cluded that it is “unlawfully overbroad” such that employees
would reasonably understand it to restrict their protected activ-
ity, in violation of Section 8(a)(1) of the Act. See Verizon Wire-
less, above, slip op. at 2. In doing so, the Board found that the
rule provided no qualifications as to the type of outside organi-
zations covered such that employees would reasonably interpret
the examples of prohibited outside organizations to include labor
unions. Id. The Board further determined that “employees
would reasonably fear that the broad language in the rule prohib-
its them from engaging in any conduct the Respondent may con-
sider detrimental to its image or reputation or as presenting a
321 NLRB 1208, 1219 (1996) (“surreptitious recording was admitted in
support of unlawful closure threat and discharge allegations”); and Well-
stream Corp., 313 NLRB 698, 711 (1994) (“surreptitious recording ad-
missible in support of allegations that employer unlawfully solicited
grievances and threatened employee”).
14 See R. Br. at 21 where Respondents list 10 state laws that prohibit
the use of recording devices without consent. See also CP Br. at 16,
citing Matthiesen, Wickert & Lehrer, S.C., Laws on Recording Conver-
sations in All 50 States, https://www.mwl-law.com/wp-content/uploads
/2013/03/LAWS-ON-RECORDING-CONVERSATIONS-CHART.pdf
(last updated Mar. 10, 2017).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
‘conflict’ with its interests, such as engaging in picketing, strikes
or other economic pressure.” Id., citing Sheraton Anchorage,
362 NLRB 1038, 1038 fn. 4 (2015) (rule prohibiting a ‘conflict
of interest’ with the employer would reasonably be understood
by employees to include protected activity) and First Transit,
Inc., 360 NLRB 619, 619 fn. 5 (2014) (rule prohibiting outside
activity participation where a conflict of interest exists is unlaw-
ful). Next, the Board concluded that this rule was overly broad
“in barring employees when reporting a ‘conflict’ to an outside
organization, from disclosing ‘nonpublic company information,’
which in the absence of any limiting language clearly implicates
terms and conditions of employment.” Id., citing Rio All-Suites
Hotel & Casino, above at 1690. Finally, the Board declared this
rule’s reporting requirement “unlawful because employees
would reasonably read it as requiring them, in certain circum-
stances, to inform the Respondent of their union and other pro-
tected activity.” Id., citing Casino San Pablo, 361 NLRB No.
148, slip op. at 4 fn. 6 (2014) (requiring employees to disclose
“their intent to engage in protected activity” is unlawful). There-
fore, I find that this Section 2.1.3 Activities Outside of Verizon
Wireless violates Section 8(a)(1) of the Act.
h. Section 3.2.1 Protecting Non-public Company Information
You must safeguard non-public company information by fol-
lowing company policies and procedures and contractual
agreements for identifying, using, retaining, protecting and dis-
closing this information.
You may not release non-public company financial infor-
mation to the public or third parties unless specifically author-
ized by Verizon’s Controller.
You may not release other non-public company information to
the public, third parties or Internet forums (including blogs or
chat rooms) unless you are specifically authorized to do so by
a vice president level or above supervisor, and the Public Pol-
icy, Law and Security Department.
You may only disclose non-public company information to
employees who have demonstrated a legitimate, business-re-
lated need for information.
Even after the company releases information, you should be
mindful that related information may still be non-public and
must be protected.
Your obligation to safeguard non-public information continues
after your employment with the company terminates. Without
Verizon’s specific written prior authorization, you may never
disclose or use non-public company information.
If you suspect or are aware of any improper disclosure of non-
public company information, you must immediately report it to
Security or the VZ Compliance Guideline.
This rule is essentially a confidentiality policy, and as such an
employer has a duty to minimize its impact on protected activity.
See Boeing Co., 362 NLRB 1789, 1789 (2015). Respondents
argue that this rule when read in context with other sections of
15 Respondents rely on an administrative law judge ruling that this
particular rule, when read in conjunction with Code rule 3.2
the Code would lead to the conclusion that the rule does not un-
lawfully restrict employees’ Section 7 rights, but rather is meant
to protect inside information. I disagree with this argument. I
find that even when read together with other sections such as
Section 3.2 (safeguarding company information), this challenged
rule would not lead employees to understand it to pertain only to
“inside information.” It goes way beyond that to include all com-
pany information, as it does not contain any examples of non-
public information except “company financial information,”
which Respondents fail to sufficiently define. See Cintas Corp.
v. NLRB, 482 F.3d 463, 467 (D.C. Cir. 2007). In Cintas Corp.,
the Board determined that the employer violated the Act when it
promulgated an overly broad rule prohibiting the unauthorized
release of “‘any information.’” The Board also concluded that
the confidentiality rule violated the Act even though its terms did
not specifically include employee wages or working conditions
or make reference to such information. Id. That decision is ap-
plicable in this case where Respondents’ rule forbids their em-
ployees from releasing not only nonpublic company financial in-
formation, but any “other non-public company information to the
public, third parties or Internet forums (including blogs or chat
rooms)” unless “specifically authorized.” Therefore, employees
would reasonably interpret this to mean that they are restricted
from disclosing information or communications with third par-
ties, such as unions, about wages, hours and other terms and con-
ditions of employment while they are employed and after they
leave Respondents’ employment.
Respondents’ reliance on cases supporting the lawfulness of
this rule is misplaced. For example, in Super K-Mart, 330 NLRB
263, 263–264 (1999), the Board found that the company’s rule
prohibiting disclosure of “company and business documents”
was lawful since it did not include language restricting wages or
working condition. However, in this case, Respondents’ policy
is much broader in prohibiting the release of all non-public com-
pany information. See also Roomstores of Phoenix, 357 NLRB
1690 at 1704.
Further, employees must not be required to obtain prior au-
thorization from the employer in order to engage in protected ac-
tivity. See Schwan’s Home Service, 364 NLRB No. 20, slip op.
at 4 (2016), citing Brunswick Corp., 282 NLRB 794, 795 (1987).
Also see G4S Secure Solutions (USA) Inc., 364 NLRB No. 92,
slip op. at 4–5 (2016). Thus, I find that this overly broad rule
restricts employees’ Section 7 rights and violates Section 8(a)(1)
of the Act.15
i. Section 3.4.1 Prohibited Activities
You may never use company systems (such as e-mail, instant
messaging, the Intranet or Internet) to engage in activities that
are unlawful, violate company policies or result in Verizon’s
liability or embarrassment. Some examples of inappropriate
uses of the Internet and e-mail include:
 Pornographic, obscene, offensive, harassing or
discriminatory content;
 Chain letters, pyramid schemes or unauthorized
mass distributions;
(safeguarding company information), is lawful. However, that opinion
is not legal precedent here. (R. Br.)
VERIZON WIRELESS 13
 Communications on behalf of commercial ven-
tures;
 Communications primarily directed to a group
of employees inside the company on behalf of an
outside organization;
 Gambling, auction-related materials or games;
 Large personal files containing graphic or audio
material;
 Violation of others’ intellectual property rights;
and
 Malicious software or instructions for compro-
mising the company’s security.
Also, you may not send e-mail containing non-public company
information to any personal email or messaging service unless
authorized to do so by your supervisor and you comply with
company requirements relating to the encryption of infor-
mation.
The Board in Verizon Wireless, 365 NLRB No. 38, adopted
the judge’s finding and rationale that this same policy violated
the Act. As discussed above, the Board in Purple Communica-
tions I held that “employee use of email for statutorily protected
communications on nonworking time must presumptively be
permitted by employers who have chosen to give employees ac-
cess to their email.” I agree with the Board’s affirmation of the
judge’s conclusion that “[a] reasonable reading of Section 3.4.1
is that employees will be disciplined for using company email to
communicate with a group of employees inside the company on
behalf of a labor organization or employees engaged in pro-
tected, concerted activity if such use will result in Verizon’s ‘em-
barrassment.’” Verizon Wireless, above slip op. at 18. I also
agree with the determination that the very use of language pro-
hibiting employees from use of email, instant messaging intranet
or internet use that would result in Respondents’ “embarrass-
ment” is overly broad, and chills Section 7 activity in violation
of Section 8(a)(1). Id.
j. Section 4.6 Relationships with and Obligations of Departing
and Former Employees
Your obligation to abide by company standards exists even af-
ter your employment with Verizon ends. The following re-
quirements apply to all current, departing and former Verizon
employees:
 When leaving or retiring, you must ensure that
you return all Verizon property in your posses-
sion, including all records and equipment.
 You may not breach any employment condition
or agreement you have with Verizon. You may
not use or disclose Verizon non-public infor-
mation in any subsequent employment, unless
you receive written permission in advance from
a Verizon vice president level or above super-
visor and the Legal Department.
 You may not provide any Verizon non-public
company information to former employees, un-
less authorized. If a former employee solicits
non-public information from you, you must
immediately notify Security or the Legal Depart-
ment.
 Except as authorized below, you may not rehire
a former employee, engage a former employee
as an independent contractor or contingent
worker, or purchase products or services on Ver-
izon’s behalf from a former employee unless
that former employee has been separated from
the company for at least six months.
I agree with the General Counsel that this rule is similar to the
one at section 3.2.1 discussed above and found to be overly broad
and unlawful in that it prohibits employees from disclosing non-
public information to former employees without prior authoriza-
tion of the employers. Therefore, for the reasons discussed
above, I find that employees would also reasonably construe this
policy, in context, to unlawfully restrict their Section 7 activity
in violation of Section 8(a)(1) of the Act. I have considered all
arguments presented by Respondents regarding this policy and
find that they are without merit.
k. Conclusion
. . .
The following are examples of actions considered illegal or un-
acceptable:
 Theft or unauthorized access, use or disclosure
of company, customer or employee records,
data, funds, property or information (whether or
not it is proprietary);
. . .
 Disparaging or misrepresenting the company’s
products or services or its employees;
. . .
In Verizon Wireless, above, the Board affirmed the judge’s
finding that these two examples are unlawfully overbroad.
When read in context, these two provisions prohibiting “use or
disclosure of company, customer or employee records, data,
funds, property or information (whether or not it is proprietary)”
would reasonably be construed to preclude communications in-
volving concerns to coworkers or others about work conditions,
criticism of management or sharing of employee information
such as names and telephone numbers—in furtherance of mutual
aid and protection and other protected activity.
The second provision at issue similarly reads too broadly and
would be reasonably interpreted by employees to mean that they
could not communicate their concerns to coworkers or to third
parties such as a union about their work terms or conditions.
Therefore, I find that these provisions under the Conclusion of
the Respondents’ Code of Conduct would tend to chill employ-
ees in the exercise of their protected Section 7 activity in viola-
tion of Section 8(a)(1) of the Act.
The General Counsel relies on Board cases such as Fresh &
Easy Neighborhood Market, 361 NLRB 72, 73–74 (2014) (em-
ployees would reasonably understand a prohibition on disclosing
employee information to constrain discussion of terms and con-
ditions of employment). Regarding the disparaging or
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
misrepresentation of company products, services or employees,
the General Counsel contends that the rule is overbroad, citing
cases such as Lily Transportation Corp., 362 NLRB 406 (2015)
(finding unlawful a rule precluding posting of “disparaging, neg-
ative, false, or misleading information or comments” about the
1352, 1356 (rule prohibiting false, misleading or malicious state-
ments unlawful); Beverly Health & Rehabilitation Services, 332
NLRB 347, 347–348, 356–357 (2000) (finding unlawful a policy
forbidding “false or misleading work-related statements con-
cerning the company, the facility, or fellow associates”); Lafa-
yette Park Hotel, above 326 NLRB at 828.
Respondents argue that these rules, as well as other challenged
policies in their Code of Conduct, should be lawful under the
“Beaumont Hospital balancing test.” Based on this test and ar-
gument, they assert that the Board should reverse the Lutheran
Heritage standard, and replace it with a balancing test that eval-
uates “(i) the legitimate justifications associated with the dis-
puted rule and (ii) any adverse impact the rule may have on
NLRA-protected activity.” (R. Br. at 25–27, 33–34, citing
Chairman Miscimarra’s dissenting opinions in William Beau-
mont Hospital, 363 NLRB No. 162, slip op. at 7–24 and Verizon
Wireless, above, slip op. at 4–5). For different reasons, the Un-
ion advocates for the reversal of Lutheran Heritage to the extent
that the Board modified the previous rule in Lafayette Park Hotel
such that it allowed employers to implement and maintain rules
where there is “any reasonable interpretation that [they are] not
unlawful.” (CP Br. at 2–7.) The Union believes that this would
make many of the challenged rules unlawful. However, for rea-
sons stated above, I must apply the current Board standards and
law.
Relying on NLRB v. Electrical Workers Local 1229, 346 U.S.
464, 475–477 (1953), Respondents assert that the Act does not
preclude rules prohibiting disparagement of products and ser-
vices. A prohibition against disparaging statements, without suf-
ficient qualifications, such as in the case here, could easily be
construed to encompass Section 7 protected activity. Thus, the
Board has found such prohibitions on them to be unlawful. See
Southern Maryland Hospital Center, 293 NLRB 1209, 1222
(1989), enfd. in relevant part 916 F.2d 932 (4th Cir. 1990).
In summary, I have considered all of the parties’ arguments
and case law in support thereof as set forth in their briefs, includ-
ing those asserted by Respondents in their reply brief.16
CONCLUSIONS OF LAW
1. Respondents, Verizon Wireless and the various Verizon
Entities, are employers engaged in commerce within the mean-
ing of Section 2(2), (6) and (7) of the Act, and have engaged in
the unfair labor practices set forth below affecting commerce
within the meaning of those sections of the Act and in violation
of Section 8(a)(1) of the Act.
2. Since about April 29, 2015, by promulgation and mainte-
nance of the following 2015 Code of Conduct rules, described
above, which would reasonably be understood by employees to
prohibit their Section 7 protected activity in violation of Section
16 I have also considered and find no merit in Respondents’ various
affirmative defenses set forth in their answers. In addition, I have con-
sidered the Union’s various other arguments, such as that involving the
8(a)(1) of the Act:
(a) “Speak Up Do the Right Thing Because it’s the Right
Thing to Do” reporting section, which requires employees to re-
port “suspected and actual violations” of the Code by determin-
ing whether conduct is dishonest, unethical, unlawful, would
hurt Verizon or cause Verizon to lose credibility with its custom-
ers or others or hurt others.
(b) “Footnote 1” located on page 10 of the Code, which in-
structs that the Code does not give employees any rights and may
be unilaterally changed at any time without notice to employees.
(c) “Section 1.6 Solicitation and Fundraising” rule, which
prohibits employees’ “use of company resources at any time
(emails, fax machines, computers, telephones, etc.) to solicit or
distribute” information.
(d) “Section 1.8.1 Monitoring On the Job,” to the extent that
it permits Verizon to monitor, record and inspect and/or search
at any time, with or without consent, any of their employees’
personal property, including vehicles, on company premises.
(e) “Section 1.8.2 Use of Recording Devices,” which prohib-
its all unauthorized audio recording, videotaping and photo-
graphing of employees while at work or working, or any cus-
tomer, business provider or competitor, without their knowledge
and approval.
(f) “Section 2.1.3 Activities Outside of Verizon,” which pro-
hibits conflict of interest discussions, participation and activity
in outside organizations or associations regarding Verizon or its
products or interests or its competitors, and requiring disclosure
of any such conflicts to the outside organizations, without dis-
closing non-public company information, and to Verizon.
(g) “Section 3.2.1 Protecting Non-public Company Infor-
mation,” which prohibits disclosure of all non-public company
financial and other information.
(h) “Section 3.4.1 Prohibited Activities,” which prohibits em-
ployees’ use of company systems (such as email, instant messag-
ing, the Intranet or Internet) to engage in activities that result in
Respondents’ “embarrassment” and for “unauthorized mass dis-
tribution” and “[c]ommunications primarily directed to a group
of employees inside the company on behalf of an outside organ-
ization.”
(i) “Section 4.6 Relationships with and Obligations of Depart-
ing and Former Employees,” which prohibits employees who are
leaving the company or who have left the company from disclos-
ing any and all non-public company information unless author-
ized.
(j) The “Conclusion” sections, which prohibit “use or disclo-
sure of company, customer or employee records, data, funds,
property, or information (whether or not it is proprietary)” and
disparagement or misrepresentation of company products or ser-
vices or its employees.
3. The provision, “Section 1.8 Employee Privacy,” would not
reasonably be read by employees to restrict Section 7 protected
activity or to chill employees from engaging in such activity.
Therefore, allegations pertaining to that section do not violate the
Act and are dismissed.
Religious Freedom Restoration Act governing the Board’s application of
Sec. 7 to protect “the core religious right to help fellow workers,” and
find it inapplicable here. (CP Br. at 2.)
VERIZON WIRELESS 15
REMEDY
Having found that Respondents have engaged in certain unfair
labor practices, I shall order them to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act. Respondents shall further be ordered to re-
frain from, in any like or related manner, abridging any of the
rights guaranteed to employees by Section 7 of the Act. Given
that their policies are maintained on a companywide basis, they
shall be ordered to post a notice at all of their facilities where the
unlawful policies have been, or are, in effect. See Longs Drug
Stores California, 347 NLRB 500, 501 (2006); Guardsmark,
LLC, 344 NLRB 809, 812 (2005). Respondents’ duty to rescind
or modify the unlawful policies is governed by Guardsmark
LLC, supra.17 They shall nationally distribute remedial notices
via email, intranet, internet, or other appropriate electronic
means to its employees, in addition to the traditional physical
posting of paper notices, if they customarily communicate with
workers in this manner. See J. Picini Flooring, 356 NLRB 11
(2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended18
ORDER
Respondents Verizon Wireless and the various Verizon Enti-
ties involved in this case, conducting business in their various
facilities throughout the United States, and their officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Maintaining the “Speak Up Do the Right Thing Because
it’s the Right Thing to Do” section in the 2015 Code of Conduct
requiring employees to report “suspected and actual violations”
of the Code by determining whether conduct is dishonest, uneth-
ical, unlawful, would hurt Verizon or cause Verizon to lose cred-
ibility with its customers or others or hurt others.
(b) Maintaining “Footnote 1” located on page 10 of the Code,
instructing that the Code does not give employees any rights and
may be unilaterally changed at any time without notice to em-
ployees.
(c) Maintaining “Section 1.6 Solicitation and Fundraising” in
the 2015 Code of Conduct prohibiting employees from “the use
of company resources at any time (emails, fax machines, com-
puters, telephones, etc.) to solicit or distribute” information.
(d) Maintaining “Section 1.8.1 Monitoring On the Job” in the
2015 Code of Conduct to the extent that it permits Verizon to
monitor, record and inspect and/or search at any time, with or
without consent, any of their employees’ personal property, in-
cluding vehicles, on company premises.
(e) Maintaining “Section 1.8.2 Use of Recording Devices” in
the 2015 Code of Conduct prohibiting all unauthorized audio re-
cording, videotaping and photographing of employees while at
17 “The Respondent may comply with our Order by rescinding the un-
lawful provisions and republishing its employee handbook without them.
We recognize, however, that republishing the handbook could entail sig-
nificant costs. Accordingly, the Respondent may supply the employees
either with handbook inserts stating that the unlawful rules have been
rescinded, or with new and lawfully worded rules on adhesive backing
which will cover the old and unlawfully broad rules, until it republishes
the handbook without the unlawful provisions. Thereafter, any copies of
work or working, or any customer, business provider or compet-
itor, without their knowledge and approval.
(f) Maintaining “Section 2.1.3 Activities Outside of Verizon
Wireless” in the 2015 Code of Conduct prohibiting conflict of
interest discussions, participation and activity in outside organi-
zations or associations regarding Verizon or its products or in-
terests or its competitors, and requiring disclosure of any such
conflicts to the outside organizations, without disclosing non-
public company information, and to Verizon.
(g) Maintaining “Section 3.2.1 Protecting Non-public Com-
pany Information” in the 2015 Code of Conduct prohibiting dis-
closure of all non-public company information.
(h) Maintaining “Section 3.4.1 Prohibited Activities” in the
2015 Code of Conduct prohibiting employees’ use of company
systems (such as email, instant messaging, the Intranet or Inter-
net) to engage in activities that result in Respondents’ “embar-
rassment” and for “unauthorized mass distribution” and “[c]om-
munications primarily directed to a group of employees inside
the company on behalf of an outside organization.”
(i) Maintaining “Section 4.6 Relationships with and Obliga-
tions of departing and Former Employees” in the 2015 Code of
Conduct prohibiting those employees who are leaving the com-
pany or who have left the Company from disclosing any and all
nonpublic company information unless authorized.
(j) Maintaining the “Conclusion” in the 2015 Code of Con-
duct prohibiting the “[t]heft or unauthorized access, use or dis-
closure of company, customer or employee records, data, funds,
property or information (whether or not it is proprietary)” and
the disparagement or misrepresentation of company products,
services or its employees.
(k) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Rescind the following sections of the 2015 Code of Con-
duct: “Speak Up Do the Right Thing Because it’s the Right
Thing to Do,” “Footnote 1” located on page 10 of the Code, sec-
tion 1.6 Solicitation and Fundraising, section 1.8.1 Monitoring
on the Job, section 1.8.2 Use of Recording Devices, section 2.1.3
Activities Outside of Verizon Wireless, section 3.2.1 Protecting
Non-public Company Information, section 3.4.1 Prohibited Ac-
tivities, section 4.6 Relationships with and Obligations of De-
parting and Former Employees and “Conclusion,” stating the fol-
lowing examples of actions considered illegal or unacceptable:
“Theft or unauthorized access, use or disclosure of company,
customer or employee records, data, funds, property or infor-
mation (whether or not it is proprietary)”; and “Disparaging or
misrepresenting the company’s products or services or its em-
ployees.”
the handbook that are printed with the unlawful rules must include the
new inserts before being distributed to employees.” Guardsmark, supra
at 812 fn. 8.
18 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
(b) Furnish all employees with inserts for the 2015 Code of
Conduct presently in effect at their respective offices and places
of business that (1) advise that the above rules have been re-
scinded, or (2) publish and distribute revised 2015 Codes of Con-
duct that do not include the above rules.
(c) Within 14 days after service by the Region, post at all of
their facilities nationwide where the unlawful policies have been
in effect or are currently in effect copies of the attached notice
marked “Appendix.”19 Copies of the notice, on forms provided
by the Regional Director for Region 6, after being signed by the
Respondents’ authorized representatives, shall be posted by the
Respondents and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper no-
tices, the notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or other elec-
tronic means, if the Respondents customarily communicate with
their employees by such means. Reasonable steps shall be taken
by the Respondents to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, during
the pendency of these proceedings, the Respondents have gone
out of business or closed the facilities involved in these proceed-
ings, the Respondents shall duplicate and mail, at their own ex-
pense, a copy of the notice to all current employees and former
employees employed by the Respondents at any time since April
29, 2015.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondents have taken to comply.
IT IS FURTHER ORDERED that the complaint allegations involv-
ing Code of Conduct provision “Section 1.8 Employee Privacy,”
are dismissed insofar as they allege violations of the Act not spe-
cifically found.
Dated, Washington, D.C. May 25, 2017
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 notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain the “Speak Up Do the Right Thing
Because it’s the Right Thing to Do” section in the 2015 Code of
19 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 National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
Conduct requiring employees to report “suspected and actual vi-
olations” of the Code by determining whether conduct is dishon-
est, unethical, unlawful, would hurt Verizon or cause Verizon to
lose credibility with its customers or others or hurt others.
WE WILL NOT maintain “Footnote 1” located on page 10 of the
Code, instructing that the Code does not give employees any
rights and may be unilaterally changed without notice to employ-
ees.
WE WILL NOT maintain “Section 1.6 Solicitation and Fundrais-
ing” in the 2015 Code of Conduct prohibiting employees from
“the use of company resources at any time (emails, fax machines,
computers, telephones, etc.) to solicit or distribute” information.
WE WILL NOT maintain “Section 1.8.1 Monitoring On the Job”
in the 2015 Code of Conduct permitting Respondents to the ex-
tent that it permits Verizon to monitor, record and inspect and/or
search at any time, with or without consent, any of their employ-
ees’ personal property, including vehicles, on company prem-
ises.
WE WILL NOT maintain “Section 1.8.2 Use of Recording De-
vices” in the 2015 Code of Conduct prohibiting all unauthorized
audio recording, videotaping and photographing of employees
while at work or working, or any customer, business provider or
competitor, without their knowledge and approval.
WE WILL NOT maintain “Section 2.1.3 Activities Outside of
Verizon Wireless” in the 2015 Code of Conduct prohibiting con-
flict of interest discussions, participation and activity in outside
organizations or associations regarding Verizon or its products
or interests or its competitors, and requiring disclosure of any
such conflicts to the outside organizations, without disclosing
non-public company information, and to Verizon.
WE WILL NOT maintain “Section 3.2.1 Protecting Non-public
Company Information” in the 2015 Code of Conduct prohibiting
disclosure of all non-public company information.
WE WILL NOT maintain “Section 3.4.1 Prohibited Activities”
in the 2015 Code of Conduct prohibiting employees’ use of com-
pany systems (such as email, instant messaging, the Intranet or
Internet) to engage in activities that result in Respondents’ “em-
barrassment” and for “unauthorized mass distribution” and
“[c]ommunications primarily directed to a group of employees
inside the company on behalf of an outside organization.”
WE WILL NOT maintain “Section 4.6 Relationships with and
Obligations of Departing and Former Employees” in the 2015
Code of Conduct prohibiting those employees who are leaving
the company or who have left the company from disclosing any
and all non-public company information unless authorized.
WE WILL NOT maintain the “Conclusion” in the 2015 Code of
Conduct prohibiting the “[t]heft or unauthorized access, use or
disclosure of company, customer or employee records, data,
funds, property or information (whether or not it is proprietary)”
and the disparagement or misrepresentation of company prod-
ucts, services or its employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of rights guaranteed you by
Section 7 of the Act.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
VERIZON WIRELESS 17
WE WILL rescind the language in the following 2015 Code of
Conduct provisions:
1. “Speak Up Do the Right Thing Because it’s the Right Thing
to Do,”
2. “Footnote 1” located on page 10 of the Code,
3. Section 1.6 Solicitation and Fundraising,
4. Section 1.8.1 Monitoring On the Job,
5. Section 1.8.2 Use of Recording Devises,
6. Section 2.1.3 Activities Outside of Verizon Wireless,
7. Section 3.2.1 Protecting Non-public Company Information,
8. Section 3.4.1 Prohibited Activities,
9. Section 4.6 Relationships with and Obligations of Departing
and Former Employees, and
10. “Conclusion” that states that the following are examples of
actions considered illegal or unacceptable: “Theft or unauthor-
ized access, use or disclosure of company, customer or em-
ployee records, data, funds, property or information (whether
or not it is proprietary)”; and “Disparaging or misrepresenting
the company’s products or services or its employees.”
WE WILL furnish all employees at all of our facilities within
the United States and its territories where the 2015 Code of Con-
duct has existed and currently exists with inserts for the current
Code of Conduct that advise that the unlawful provisions above
have been rescinded, or distribute a revised Code of Conduct that
does not contain the unlawful provisions.
VERIZON WIRELESS AND VERIZON WIRELESS ENTITIES
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/04-CA-156043 or by using the QR code be-
low. 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.
APPENDIX B
. . . .
DECISION GRANTING THE GENERAL COUNSEL’S
MOTION TO WITHDRAW COMPLAINT ALLEGATIONS
IN LIGHT OF THE BOEING CO. AND ORDER
WITHDRAWING CONSOLIDATED COMPLAINT
On November 19, 2018, the Board issued a Notice to Show
Cause why this case should be remanded for further considera-
tion under The Boeing Co., 365 NLRB No. 154 (2017). Re-
spondents filed their response opposing remand, while the
Charging Parties filed their response favoring remand. The
General Counsel did not respond. After consideration, the Board
remanded the case, in part, to me, to consider the following chal-
lenged sections of Respondent’s Code of Conduct (Code), under
the new standards set forth in Boeing: “Speak Up” reporting sec-
tion; Footnote 1 on page 10 containing compliance language 1.8
(Employee Privacy); 1.8.2 (use of Recording Devices); 2.1.3
(Activities Outside of Verizon); 3.2.1(Protecting Non-public
Company Information); and 4.6 (Relationships with Obligations
of Departing and Former Employees). The Board further re-
manded these sections to me “for the purpose of reopening the
record, if necessary, and preparation of a supplemental decision
addressing the complaint allegations affected by Boeing and set-
ting forth credibility resolutions, findings of fact, conclusions of
law, and recommended Order.”
The Board severed and retained for future consideration the
complaint allegations that Sections 1.6, 1.8.1, and 3.4.1 of the
Respondent’s Code are unlawful. Therefore, I will not address
these provisions.
The complaint in this matter alleges, inter alia, that certain
rules and policies maintained by Respondent violate Section 8(a)
(1) of the Act based on the recently overruled (by Boeing) ana-
lytical framework set forth in Lutheran Heritage Village-Livo-
nia, 343 NLRB 646 (2004). On December 14, 2017, in Boeing,
the Board overruled relevant parts of Lutheran Heritage and an-
nounced new standards by which facially neutral rules should be
analyzed to determine whether they violate the Act. Th Board
made these standards retroactive and thus applicable to the in-
stant case.
Based on the Board’s remand, I issued an order on May 21,
2019 directing the parties to file position statements addressing
whether the remand in this case should include a re-opening of
the record, and if so, to provide a summary of eh evidence they
would introduce , number of witnesses, if any, and an estimate
of the time it would take to present their evidence.
All parties filed position statements. Both the General Coun-
sel and Respondents opposed the re-opening of the record, as-
serting that the record as it stands sufficiently permits an analysis
of whether Respondents maintain unlawful facially neutral rules
under the Boeing standards. On the other hand, the Charging
Parties argued that this case should be reopened to accept addi-
tional evidence, including witness testimony, to allow them to
prove under the Boeing standards that Respondents failed to suf-
ficiently demonstrate justification for its rules. After reviewing
the various positions and arguments, I issued an order on August
2, 2019, that there was no need for a hearing in this case. The
complaint allegations related only to Respondents’ maintenance
of the rules and Respondents relied on the record and the rules
as set forth in their Code for justification of maintenance. I also
permitted the parties if they so desired to file supplemental briefs
on or before August 26, 2019. The Charging Parties submitted
their supplemental brief on August 19, 2019, reasserting their
contention that they cannot prove lack of justification for the
rules without testimony and record evidence. That request is
DENIED.
Thereafter, On August 21, 2019, the General Counsel filed a
Motion to Withdraw Complaint Allegations, paragraphs 5(a),
5(b), 5(f), 5(g), 5(h), 5(j), and 5(k) of consolidated complaint in
cases 02–CA–156761, 04–CA–156043, 05–CA–156053, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
31–CA–161472, issued on October 31, 2016, and paragraphs
6(a), 6(b), 6(f), 6(g), 6(h), 6(j), and 6(k) in cases 02–CA–157403,
also issued on October 31, 2016. These referenced paragraphs
correspond with the complaint allegations that Respondents vio-
lated the Act by maintaining the following provisions of Re-
spondent’s code: the “Speak Up” reporting section; Footnote 1
located on page 10 of the Code containing compliance language;
Section 1.8.2 (“Use of Recording Devices”); Section 2.1.3 (“ac-
tivities Outside of Verizon”); Section 3.2.1 (“Protecting Non-
public Company Information”); Section 4.6 (“Relationships with
the Obligations of Departing and Former Employees”); and two
examples of actions considered illegal or unacceptable in the
Conclusion section of the Code. The General Counsel applied
the new Boeing standards to these code provisions and deter-
mined that in “in the interest of maintaining consistency with the
current Board law,” it was requesting withdrawal.
On March 20, 2017, prior to May 25, 2017 issuance of my
decision on the record, I granted the General Counsel’s motion
to withdraw Section 1.8 (Employee Privacy) of Respondent’s
Code (corresponding with pars. 5(d) in consolidated complaint
in Consolidated Complaint Cases No. 02–CA–156761, 04–CA–
156043, 05–CA–156053, 31–CA–161472 and paragraph 6(d) in
complaint Case No. 02–CA–157403). That motion and order
were based on the Board’s decision in Cellco Partnership d/b/a
Verizon Wireless, 365 NLRB No. 38 (2017).
Pursuant to the Board’s Rules and Regulations, Section
102.25-102.27, it is within the administrative law judge’s discre-
tion to approve, upon motion, the withdrawal of a complaint
when the case is before him or her for decision. I find that the
Board’s remand order has placed these consolidated cases before
back before me. The General Counsel brought this complaint
and has determined that these remaining provisions in Respond-
ents’ Code no longer violate the Act under the new Boeing stand-
ards. After review of all submissions, I agree. Therefore, I
hereby DENY Respondents’ request to reconsider my decision to
forgo a hearing and GRANT the General Counsel’s Motion to
withdraw all remaining consolidated complaint allegations set
forth above.
Therefore, I order that these remaining allegations in this
above-numbered consolidated complaint before me are With-
drawn and that the entire consolidated complaint be remanded to
the appropriate Regional Director DISMISSAL.
IT IS SO ORDERED.
Dated at Washington, D.C. this 27th day of September 2019.