NLRB Upholds No-Recording Policy and Sets New Standard Governing Workplace Policies Applied to Restrict Section 7 Activity | Practical Law

NLRB Upholds No-Recording Policy and Sets New Standard Governing Workplace Policies Applied to Restrict Section 7 Activity | Practical Law

In AT&T Mobility, LLC, the National Labor Relations Board (NLRB) held that a no-recording policy was a lawful Boeing Category 1(b) policy. The NLRB also overruled the "applied to restrict" analysis of Lutheran Heritage Village-Livonia and set new analysis governing when an employer applies facially neutral rules, policies, and employee handbook provisions to restrict the exercise of Section 7 rights under the National Labor Relations Act (NLRA).

NLRB Upholds No-Recording Policy and Sets New Standard Governing Workplace Policies Applied to Restrict Section 7 Activity

by Practical Law Labor & Employment
Law stated as of 02 Aug 2023 • USA (National/Federal)
In AT&T Mobility, LLC, the National Labor Relations Board (NLRB) held that a no-recording policy was a lawful Boeing Category 1(b) policy. The NLRB also overruled the "applied to restrict" analysis of Lutheran Heritage Village-Livonia and set new analysis governing when an employer applies facially neutral rules, policies, and employee handbook provisions to restrict the exercise of Section 7 rights under the National Labor Relations Act (NLRA).
NOTE: See the UPDATE at the end of this resource for subsequent developments affecting this decision.
On May 3, 2021, in AT&T Mobility, LLC, the majority of the panel (Board) heading the NLRB's judicial functions approved the employer's facially neutral no-recording rule within its workplace privacy policy under Boeing, and used new analysis when holding that the employer unlawfully applied that policy to restrict Section 7 activity. More specifically, the Board:
  • Held that the employer lawfully maintained a rule within a workplace privacy policy precluding employees from recording telephone or other conversations with co-workers, managers, or third parties, unless those recordings were approved in advance by the employer's legal department, required by business needs, and fully compliant with the law and any applicable employer policy. The Board deemed the rule a Boeing Category 1(b) rule, because it:
    • has a comparatively slight impact on employees' Section 7 rights. It may prevent recording of some protected conversations, but the policy would predominantly cover conversations with no relation to Section 7 activity;
    • does not infringe on employees' Section 7 rights to speak to each other about working conditions or other protected Section 7 topics; and
    • is supported by compelling reasons, including obligations under federal law to safeguard customer information and customer communications.
    (See Boeing Co., 365 N.L.R.B. No. 154 (Dec. 14, 2017).)
  • Noted that the Board traditionally holds and continues to hold that an employer commits an unfair labor practice by applying a lawful, facially-neutral rule to restrict the exercise of Section 7 rights (see Lutheran Heritage Village-Livonia (Lutheran Heritage) 343 N.L.R.B. 646, 646-47 (2004), overruled in part on other grounds, Boeing Co., 365 N.L.R.B. No. 154).
  • Held that applying a lawful, facially-neutral rule to restrict the exercise of Section 7 rights does not make it unlawful for the employer to continue maintaining the rule.
  • Overruled the "applied to restrict" standard in prong three of Lutheran Heritage to the extent that case:
    • held that it was unlawful for an employer to maintain an otherwise lawful, facially-neutral employment rule if the employer ever applied it to restrict employees' exercise of Section 7 rights; and
    • required an employer that applied an otherwise lawful, facially-neutral employment rule to restrict employees' exercise of Section 7 rights to rescind that rule.
  • Held that a union steward engaged in protected union activity when, acting in his capacity as union steward, he attended and recorded the termination meeting of a bargaining unit employee to police the parties' collective bargaining agreement and preserve evidence for use in a possible grievance.
  • Held that the employer violated the NLRA by threatening the union steward with unspecified reprisals, if he were again to engage in the protected union recording activity in violation of the no-recording policy. By making this threat, the employer applied the no-recording policy to restrict the steward in the exercise of his Section 7 rights.
  • Held that the proper remedy for an employer's unlawful application of a lawful rule to restrict the exercise of Section 7 rights in this and in future cases is ordering the employer to:
    • cease and desist that action; and
    • post an appropriate notice.
Chairman McFerran dissented from this opinion except to join the majority in holding that the employer unlawfully applied its no-recording rule.
(370 N.L.R.B. No. 121 (May 3, 2021).)
AT&T Mobility further overrules Lutheran Heritage. The practical implications of this case are that until Chairman McFerran leads a majority of Board members:
  • Boeing and its progeny provide the analysis for whether a facially neutral employment rules would interfere with employees' exercise of Section 7 rights.
  • AT&T Mobility provides the analysis of:
    • whether employers are applying facially neutral rules in ways that restrict employees' exercise of Section 7 rights; and
    • what remedies the Board orders when employers apply facially neutral rules in ways that restrict employees' exercise of Section 7 rights.
AT&T Mobility also highlights that it remains unlawful to apply lawful employment rules in circumstances that restrict employees' exercise of Section 7 rights.

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).