NLRB Designates Rules Prohibiting Cell Phones in Commercial Vehicles as Boeing Category 1(a); Finds Confidentiality and Electronic Communications Policies Lawful | Practical Law

NLRB Designates Rules Prohibiting Cell Phones in Commercial Vehicles as Boeing Category 1(a); Finds Confidentiality and Electronic Communications Policies Lawful | Practical Law

In Argos USA LLC, the National Labor Relations Board (NLRB) held that employer rules prohibiting the possession or use of cell phones in commercial vehicles are lawful Category 1(a) rules under the Boeing framework and also upheld the employer's confidentiality and electronic communications policies.

NLRB Designates Rules Prohibiting Cell Phones in Commercial Vehicles as Boeing Category 1(a); Finds Confidentiality and Electronic Communications Policies Lawful

by Practical Law Labor & Employment
Law stated as of 02 Aug 2023 • USA (National/Federal)
In Argos USA LLC, the National Labor Relations Board (NLRB) held that employer rules prohibiting the possession or use of cell phones in commercial vehicles are lawful Category 1(a) rules under the Boeing framework and also upheld the employer's confidentiality and electronic communications policies.
NOTE: See the UPDATE at the end of this resource for subsequent developments affecting this decision.
On February 5, 2020, in Argos USA LLC, the panel (Board) heading the NLRB's judicial functions:
  • Designated rules that prohibit employees' use or possession of cell phones in commercial vehicles as presumptively lawful Category 1(a) rules under the standard established in The Boeing Company because they cannot reasonably be understood to restrict or otherwise interfere with the exercise of employees' right under Section 7 of the NLRA to communicate during nonwork time (365 N.L.R.B. No. 154 (Dec. 14, 2017)).
  • Upheld the employer's confidentiality policy as a lawful Category 1(a) rule under Boeing, despite references to "earnings" and "employee information," because when read in context, the policy is limited to the employer's proprietary business information and cannot reasonably be interpreted to interfere with employees' Section 7 rights.
  • Upheld the employer's electronic communications policy pursuant to the retroactive application of the Board's recent decision in Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino, which held that employees do not have a statutory right under the NLRA to use employer email systems for Section 7 purposes in a typical workplace where employees have other reasonable means of communication (368 N.L.R.B. No. 143 (2019)).
(369 N.L.R.B. No. 26 (Feb. 5, 2020).)
The Board's decision in Argos USA establishes that employer rules prohibiting the possession or use of cell phones in commercial vehicles are valid under the NLRA as a matter of law, unless employees have no other reasonable means of communicating with each other or there is otherwise proof of discrimination. The decision also reaffirms the rights of employers to maintain and enforce reasonable workplace policies requiring employee confidentiality regarding proprietary business information and restricting employee use of company email systems.

UPDATE

On August 2, 2023, a Board majority adopted a new burden-shifting standard for evaluating facial challenges to employer work rules that do not expressly restrict employees' protected concerted activity under Section 7 of the NLRA, overruling Boeing and the subsequent work rules decisions applying the categorical classification system articulated therein (Stericycle, Inc., 372 N.L.R.B. No. 113 (Aug. 2, 2023); for more information on this decision, see Article, The NLRB's New, Developing Standard for Assessing Lawfulness of Work Rules).