NLRB Designates Rules Prohibiting Cell Phones and Other Personal Items in Work Areas as Boeing Category 1(b) | Practical Law

NLRB Designates Rules Prohibiting Cell Phones and Other Personal Items in Work Areas as Boeing Category 1(b) | Practical Law

In Cott Beverages Inc., the National Labor Relations Board (NLRB) held that a rule broadly prohibiting personal items including cell phones in work areas was a lawful Boeing Category 1(b) rule, with business justifications outweighing any slight impact on Section 7 activity.

NLRB Designates Rules Prohibiting Cell Phones and Other Personal Items in Work Areas as Boeing Category 1(b)

by Practical Law Labor & Employment
Law stated as of 02 Aug 2023 • USA (National/Federal)
In Cott Beverages Inc., the National Labor Relations Board (NLRB) held that a rule broadly prohibiting personal items including cell phones in work areas was a lawful Boeing Category 1(b) rule, with business justifications outweighing any slight impact on Section 7 activity.
NOTE: See the UPDATE at the end of this resource for subsequent developments affecting this decision.
On May 20, 2020, in Cott Beverages Inc., the panel (Board) heading the NLRB's judicial functions held that a broad prohibition of personal items including cell phones from work areas:
  • Potentially infringed on Section 7 rights by restricting employees' abilities to use their phones to:
    • make audio or video recordings;
    • communicate with each other about workplace issues; or
    • take photographs of working conditions.
  • Was supported as a reasonable, lawful effort to:
    • ensure the integrity of the employer's beverage production process;
    • satisfy FDA requirements for food-production facilities; and
    • reduce the risks of product contamination, slowed response times, and on-the-job accidents (given the unique distractions cell phones pose).
  • Was a lawful Boeing Category 1(b) rule because the employer's legitimate business interests outweighed the relatively slight risk that the rule would interfere with Section 7 activity.
(369 N.L.R.B. No. 82 (May 20, 2020).)
The Board:
  • Declined to hold that the rules were unlawful because the employer could have drafted the rules more narrowly as inconsistent with Boeing.
  • Noted that like Argos USA LLC, the cell phone prohibition here was justified in part on safety concerns. However, the Board distinguished the no-cell phone rule in Argos, a Boeing Category 1(a) rule, which:
    • in no way indicated that employees are prohibited from discussing, taking photos, or recording their terms and conditions of employment while away from the facility; and
    • emphasized repeatedly that the policy's purpose was to ensure the safety of drivers and the general public.
(See Argos USA LLC, 369 N.L.R.B. No. 26 (Feb. 5, 2020).)
The practical implications of this decision are that employers should be prepared to proffer legitimate business reasons for rules curbing workplace possession of cell phones and consider noting one or more of those reasons in their written policies or guidance.

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).