In DirecTV U.S. DirecTV Holdings LLC, the key litigated issues were whether:

DirectTV, a nationwide company that installs satellite dishes, employed Gregory Edmonds as an installer at its facility in Riverside, California. Following a vote in favor of union representation at a nearby DirectTV facility, DirectTV held a mandatory meeting at the Riverside facility at which Adrian Dimech, a vice president of operations, invited employees to present concerns about their working conditions. Edmonds raised several complaints about compensation and other issues with Dimech during the meeting and suggested that the company might hear concerns better if employees had union representation. Dimech approached Edmonds after the meeting and, during a 45-minute conversation, informed him that he would address the issues Edmonds raised. Edmonds responded that the company was not addressing the issues and that he believed the meeting was solely for the purpose of discouraging unionization.

On the first or second workday following the meeting, Edmonds' supervisor, Freddy Zambrano, warned Edmonds that he would monitor Edmonds' jobs that day. One or two months after the meeting with Dimech, Edmonds was standing among a group of 40 to 60 other installers waiting to gather his work materials for the day. Spotting Zambrano, Edmonds exclaimed to him, using profanity and allegedly shouting about whether he could do anything about the wait for materials.

The following day, at a meeting with Zambrano and two other supervisors, Edmonds was informed that he would be suspended for approximately one week for insubordination toward Zambrano, based on his outburst and use of profanity the day before. After the suspension period, however, Zambrano met with Edmonds and told him that he was being terminated for insubordination toward Zambrano.

A union filed unfair labor practice (ULP) charges alleging that DirectTV violated the NLRA by:

After the NLRB issued a ULP complaint, DirectTV posted on a bulletin board at the Riverside facility and on its intranet information stating that the policies contained in the employee handbook and intranet would not be used to retaliate against employees who exercised Section 7 Rights.

An NLRB administrative law judge (ALJ) found that:

The ALJ ordered that:

DirectTV filed exceptions to panel (Board) heading the NLRB's judicial functions.

On January 25, 2013, later the same day that the DC Circuit held that the Board was not properly constituted and had no authority to issue decisions because of invalid recess appointments, the Board issued a decision in this case (see Legal Update, DC Circuit Rules NLRB Recess Appointments Were Unconstitutional; Enforceability of All Recess Appointees' Decisions in Doubt). Chairman Pearce and recess appointees Block and Griffin unanimously affirmed the order of the ALJ.

The Board held that the four rules at issue were unlawful because employees would reasonably construe them as prohibiting activity protected under Section 7. These included:

In each case, however, the Board acknowledged that the rules implicated legitimate employer interests, and left open the possibility that more narrowly tailored rules might not be found unlawful.

Although the Board agreed with the ALJ that the work rule prohibiting use of company property for outside organization activity was lawful under the Board's decision in The Register-Guard, Chairman Pearce and Member Griffin questioned whether The Register-Guard was correctly decided. However, they declined to address the issue in this case.

The Board also affirmed the ALJ's conclusion that DirectTV's efforts to clarify its rule following the issuance of the complaint did not constitute a repudiation of its unlawful conduct. For a repudiation to serve as a defense to a ULP charge, under Passavant Memorial Area Hospital and other cases, the Board noted, it must be:

Additionally, the employer must admit wrongdoing (Ark Las Vegas Restaurant Corp. v. NLRB). Here, the Board found, DirectTV's purported repudiation was untimely, since it came nearly a year after Direct TV promulgated the rules at issue, and until after the NLRB issued a complaint. In Passavant, for comparison, the Board found a repudiation issued only seven weekly after an unlawful threat of discharge was untimely. The Board also found that DirectTV failed to admit wrongdoing.

The Board also rejected the ALJ's proposal to explore modifications of the language of the rules, holding that the proper remedy for the unlawful work rules was immediate rescission. The Board concluded that a company-wide rescission of the rules was necessary to ameliorate the chilling effect of the rules on the exercise of protected rights since:

Finally, the Board affirmed the ALJ's conclusion that DirectTV unlawfully discharged Edmonds. Specifically, the Board concluded that, under the test in Wright Line:

The Board's decision provides helpful guidance to employers regarding the lawfulness of employee rules that seek to control or regulate employee communications with the media, law enforcement and others outside the company. Although the Board did acknowledge that employers have legitimate interests in regulating these matters, its decision makes clear that any rule attempting to govern employee conduct in these areas should not:

Instead, employers might consider developing policies, like the one highlighted as acceptable in the NLRB Acting General Counsel's third report on social media that instructs employees:

The union apparently scoured the employer's personnel policies for potential Section 7 violations and was able to attach additional ULPs to the termination ULP without showing any specific effects the policies had on employees or that any employee interpreted the policies as interfering with their Section 7 rights. Employers should beware that unions may use poorly worded employee handbooks and personnel policies as bases for ULP charges and, in turn, ULP determinations as organizing campaign fodder.