January 23, 2018

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Labor Board Allows Evidence to Explain Employee Handbook Ban on Video Recording

The National Labor Relations Board has denied a motion for summary judgment by the NLRB’s General Counsel in a case involving Mercedes-Benz U.S. International Inc.’s maintenance of an employee handbook rule prohibiting the use of cameras and video recording devices without prior approval.

The 2-1 decision allows MBUSI to attempt to prove that: (1) the rule “furthers legitimate business interests, including the protection of proprietary and confidential information, the maintenance of safety and production standards, and open communication” by employees; (2) the rule is not per se unlawful under Section 8(a)(1) of the National Labor Relations Act because employees at the plant “did not understand the camera rule to restrict Section 7 activity” under the NLRA; and (3) “its business interests outweigh any Section 7 rights” that may be implicated by its maintenance of the rule.

The Board majority — Chairman Philip A. Miscimarra and Member Lauren McFerran — made it clear that it was expressing “no view” on the merits of the case. Thus, whether the company’s evidence at trial will be sufficient to win the day remains to be seen. Nevertheless, citing previous Board decisions reaching the same conclusion, the majority in the Mercedes-Benz U.S. International Inc. case rejected a lengthy dissent by Member Mark Gaston Pearce that would have found the no-recording rule unlawful on its face.

Employers with similar handbook rules that may be considered unlawful by the NLRB’s General Counsel, which has been waging war against common workplace rules of all types, may take comfort in the majority’s decision. Employers should review their handbooks and policy manuals carefully to make sure the rules within them do not “reasonably tend to chill employees in the exercise of their Section 7 rights” under the NLRA.

This post was written with contributions from John E. Higgins.


Jackson Lewis P.C. © 2018


About this Author

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

Philip B. Rosen, Jackson Lewis, Preventive Practices Lawyer, Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.