United States Postal Service

National Labor Relations Board - Unpublished Board Decisions

Apr 3, 2020

14-CA-195011 (N.L.R.B. Apr. 3, 2020)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
UNITED STATES POSTAL SERVICE
and Case 14-CA-195011
ROY YOUNG
ORDER REMANDING1
On September 25, 2018, Administrative Law Judge Melissa M. Olivero issued a
decision finding that the Respondent violated Section 8(a)(1) of the National Labor
Relations Act by directing employees to limit their email communications to supervisors
and managers only and not to copy or forward emails to other employees or their union
representatives and Section 8(a)(3) and (1) by issuing a notice of suspension to the
Charging Party for not following this directive. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed an answering brief.2
This case implicates the Respondent’s restrictions on the use of its email system
by employees. In her decision, the judge cited Purple Communications, Inc., 361 NLRB
1050 (2014), and concluded that the Charging Party “engaged in a protracted course of
1 Chairman Ring, who is recused, is a member of the panel but did not participate in this
decision on the merits.
In New Process Steel v. NLRB, 130 S.Ct. 2635 (2010), the Supreme Court left
undisturbed the Board’s practice of deciding cases with a two-member quorum when
one of the panel members has recused himself. Under the Court’s reading of the Act,
“the group quorum provision [of Sec. 3(b)] still operates to allow any panel to issue a
decision by only two members if one member is disqualified.” New Process Steel, 130
S. Ct. at 2644. See also, e.g., D.R. Horton, 357 NLRB 2277, 2277 n.1 (2012), enfd. in
relevant part, 737 F.3d 344, 353 (5th Cir. 2013); NLRB v. New Vista Nursing and
Rehabilitation, 870 F.3d 113, 127–28 (3d Cir. 2017); 1621 Route 22 West Operating
Company, 357 NLRB 1866, 1866 n.1 (2011), enfd. 725 Fed. Appx. 129, 136 n.7 (3d Cir.
2018).
2 On December 17, 2019, the Respondent filed a Notice of Recent Authority calling the
Board’s attention to Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368
NLRB No. 143 (2019).
2
protected, concerted activity via email.” The Board recently overruled Purple
Communications and announced a new standard that applies retroactively to all
pending cases. Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368
NLRB No. 143, slip op. at 8-9 (2019). In Caesars Entertainment, the Board held that
“an employer does not violate the Act by restricting the nonbusiness use of its IT
resources absent proof that employees would otherwise be deprived of any reasonable
means of communicating with each other, or proof of discrimination.” Id., slip op. at 8.
In their briefs to the Board, the General Counsel and the Respondent both requested
that the case be remanded to the judge for further consideration if the Board overruled
Purple Communications.
Accordingly, we remand this case to the judge for further consideration, to
include permitting the parties to file supplemental briefs to the judge. Further, the judge
may reopen the record to obtain evidence relevant to deciding this issue.
ORDER
IT IS ORDERED that this proceeding is remanded to Administrative Law Judge
Melissa M. Olivero for appropriate action as set forth above.
IT IS FURTHERED ORDERED that the judge shall prepare a supplemental
decision setting forth credibility resolutions, findings of fact, conclusions of law, and a
recommended Order. Copies of the supplemental decision shall be served on all
parties, after which the provisions of Section 102.46 of the Board's Rules and
Regulations shall be applicable.
Dated, Washington, D.C., April 3, 2020.
____________________________________
Marvin E. Kaplan, Member
3
____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD