On February 24, 2017, the National Labor Relations Board ("NLRB"), in Cellco Partnership dba Verizon Wireless, Cases 28-CA-145221, ruled that Verizon Wireless ("Verizon") change certain provisions in its 2015 employee handbook because they could be reasonably understood as an attempt to prevent Verizon employees from discussing their terms and conditions of employment in violation of the National Labor Relations Act ("NLRA"). While the NLRB's ruling in this case is certainly important, the partial dissent written by the NLRB's newly appointed Acting Chairman Phillip Miscimarra is receiving as much attention as the ruling itself because, in the dissent, the Chairman called for the overturning of some significant NLRB decisions governing employee handbooks and the provisions they may contain.
Chairman Miscimarra specifically criticized two major decisions of the NLRB, Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), and Purple Communications, Inc., 361 NLRB No. 126 (2014). Lutheran established the "reasonably construe" standard that the NLRB currently uses to determine the validity of an employer's rule or policy. According to the Lutheran standard, the employer's rule or policy is invalid if it can be reasonably construed as prohibiting employees from discussing terms and conditions of employment in violation of the NLRA. The Chairman argued that the standard in Lutheran should be replaced by another standard that evaluates an employer's rule or policy by balancing an employer's legitimate justifications for the rule/policy and the rule/policy's potential effect on NLRA protected activities.
The Chairman also disagreed with the NLRB's decision in Purple Communications. Purple Communications stands for the proposition that, if an employer grants its employees access to its email system for work-related purposes, then the employees are rebuttably presumed to have a right to use that system to engage in NLRA-protected communications when they are not working. The Chairman argued that the NLRB should overrule its decision in Purple Communications and reinstate its holding in Register Guard, 351 NLRB 1110 (2007), which recognizes the right of employers to control the uses of their own property, including their email systems, provided that they do not discriminate against NLRA-protected communications by distinguishing between permitted and prohibited uses along Section 7 lines.
Chairman Miscimarra's partial dissent in Verizon Wireless illustrates a stark contrast between the Board's current standards and Chairman's views, at least with respect to the evaluation of employee handbook provisions. Oftentimes, a change in the presidency leads to major policy changes at various national agencies and the NLRB is no exception. Chairman Miscimarra was appointed by President Donald Trump as the new Acting Chairman on January 26, 2017, and, one month into his new role, the Chairman's dissent is certainly revealing as to his very different vision of the direction that the NLRB should head to in the future.