United States: Blowin' In The Wind? The Evolution Of A Balanced Analysis Of Workplace Policies By The NLRB

Last Updated: March 10 2017
Article by Harold P. Coxson

On February 24 , 2017, a two-member majority (Members Mark Gaston Pearce and Lauren McFerran) of the National Labor Relations Board, over the dissent of Acting Chairman Philip Miscimarra, struck down yet another handbook policy in Cellco Partnership d/b/a Verizon Wireless, 365 NLRB No. 38 (2017). The fact that following the 2016 elections the former Board still retains a 2-1 majority, with two Board vacancies to fill, is frustrating enough. But using that majority to apply the Board's current case law under Lutheran Heritage Village-Livonia, 343 NLRB No. 646 (2004), and standards under Purple Communications, 361 NLRB. No. 126 (2014)—which almost surely will change when the Board attains a new majority—adds insult to injury. A new Board is widely expected to reverse or significantly modify current Board law regarding the "chilling" of concerted activity by isolated employee handbook statements (Lutheran Heritage) and the right of employees to use company email at work for non-business purposes to solicit unionization and engage in other concerted activities (Purple Communications). The question is when will that occur? In the meantime, current NLRB General Counsel Richard Griffin will continue to issue complaints and advance cases under the law as interpreted by the former Obama Board. Griffin's term expires in November of 2017.

Factual Background

In Cellco Partnership, the Board majority found that several rules in the company's 2014 and 2015 "Codes of Conduct" were facially unlawful and violated Section 8(a)(1) of the National Labor Relations Act (NLRA). Two Board members, applying the Lutheran Heritage standard, speculated that employees might "reasonably construe" and interpret the rules as preventing employees from exercising protected rights under Section 7 of the NLRA to engage in concerted activity. The rules in question follow below.

Section 1.8, "Employee Privacy," provides:

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

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

Section 2.1.3, "Activities Outside of Verizon Wireless," provides:

Many employees participate in an individual capacity in outside organizations (such as their local school board or homeowners' association). Memberships in these associations can cause conflicts if they require decisions regarding Verizon Wireless 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 Wireless or its competitors. You must also disclose this conflict to your outside organization without disclosing nonpublic company information and you must disclose any such potential conflict to the VZ Compliance Guideline. Participation in any outside organization should not interfere with your work for Verizon Wireless. To the extent that your participation infringes on company time or involves the use of Verizon Wireless resources, your supervisor's approval is required.

Section 3.4.1, "Prohibited Activities," provides, in relevant part:

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 Wireless' 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; Communications primarily directed to a group of employees inside the company on behalf of an outside organization.

The Board's Decision

Although not citing to any actual application of these three rules or the views actually expressed by any employees, the Board majority speculated that the rules possibly could be read by employees to "chill" their exercise of protected rights to communicate with one another regarding unionization and to engage in protected concerted activity such as striking or picketing.

Although the Board majority acknowledged that employers sometimes have substantial and legitimate interests in ensuring that certain information remains private, they believed that the language of the Section 1.8 "Employee Privacy" rule could reasonably be construed as preventing employees from exchanging information about compensation, discussing other terms and conditions of employment, or disclosing personal employee information in violation of Section 8(a)(1) of the NLRA.

As to the language of Section 2.1.3, "Activities Outside of Verizon Wireless," the full Board, Acting Chairman Miscimarra included, rejected a 2015 administrative law judge's (ALJ) decision upholding the rule as merely expressing the ethics of an employee's actions involving the company or its products while participating in outside organizations. The Board speculated that although the rule referred to employee involvement in school boards and homeowners associations as examples, it did not specifically exclude other organizations. Thus, the Board concluded, the rule could be read as prohibiting employee participation in unions and disclosure of any information deemed by the company to be detrimental to or in conflict with its business interests.

As to Section 3.4.1, "Prohibited Activities," the Board majority found that the ALJ correctly applied the Board's decision in Purple Communications to find the rule unlawful. While upholding the rule's restrictions on communications that contained "offensive" or "harassing" content and "chain letters," the Board found unlawful the rule's prohibitions on employee use of "email, instant messages, Intranet and Internet" to embarrass the employer, as well as "unauthorized mass distributions" and communications "primarily directed to a group of employees inside the company on behalf of an outside organization."

The Board's order required nationwide notice posting, as well as notices to be mailed to employees of closed facilities where they had been employed when the rules were in effect.

Chairman Miscimarra's Dissent

Foreshadowing the potential reversals of both Lutheran Heritage and Purple Communications by a new Board majority, Acting Chairman Miscimarra cited his earlier dissents in William Beaumont Hospital, 363 NLRB No. 162 (2016) (where the majority applied Lutheran Heritage's "reasonably construe" standard) and Purple Communications, both of which he argued were wrongly decided.

Miscimarra argued that the Board's current interpretation of Lutheran Heritage "requires perfection that literally has become the enemy of the good" in evaluating the ambiguous wording of employer rules, policies, and handbook provisions. By the Board's flyspecking of employer rules, policies, and handbook provisions, and its scrutiny of every word to ferret out any possible reading that employees may reasonably construe as restricting protected concerted activity, employer policies will not be safe no matter how carefully they are worded. As a result, employers must search for a perfectly worded policy or else forgo the policy altogether.

In place of the Lutheran Heritage standard, Acting Chairman Miscimarra, quoting a 1967 NLRB decision, would substitute a "proper balance" by which the Board evaluates a rule, policy, or handbook provision taking into account both (1) the "legitimate justification" associated with the disputed rule, and (2) whether the rule violates any NLRA-protected right to engage in concerted activity involving a "facially neutral" rule, policy, or handbook provision. "Facially neutral," according to Miscimarra, is defined as a rule which does not "expressly" restrict NLRA-protected activity, was not "adopted" in response to NLRA-protected activity, and has not "applied" to restrict NLRA-protected activity. He argued that the "balancing test" is required by the 1945 decision by the Supreme Court of the United States in Republic Aviation Corp. v. Labor Board and subsequently by its 1963 decision in National Labor Relations Board v. Erie Resistor Corp.

Miscimarra would apply the same "balancing test" in reversing Purple Communications by requiring the Board to weigh an employer's legitimate business justifications for prohibiting or restricting employees' use of the company's business email and other communication systems.

Significance of the Board's Decision

Cellco Partnership is the latest among scores of Board decisions in which a simple Board majority opines that employees may "reasonably construe" isolated language in work rules, policies and employee handbooks would "chill" their potential exercise of Section 7 rights under the NLRA. The Board often selects isolated language from workplace rules for which there is no record evidence that have ever been applied, enforced or interpreted by employees as "chilling" the exercise of Section 7 rights. For employers, this presents a challenge in predicting which language in work rules, policies, and handbooks will next be targeted by the Board. The current Board does not attempt to balance its interpretation against the employer's legitimate business interests in establishing and maintaining the rule. That balance presumably must await the confirmation of a more balanced Board.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.