May 25, 2020

NLRB: Confidentiality, Cell Phone, Electronic Communications Policies Lawful under NLRB’s Work Rules Decisions

Applying its decisions in Boeing Co. (365 NLRB No. 154) and Caesars Entertainment Corp. (368 NLRB No. 143), the National Labor Relations Board (NLRB) has overturned an Administrative Law Judge’s (ALJ) finding that an employer unlawfully maintained overbroad Confidential Information, Electronic Communications, and Cell Phone Policies, and unlawfully terminated its employee for violation of the Cell Phone Policy. Argos USA d/b/a Argos Ready Mix, LLC, 369 NLRB No. 26 (Feb. 5, 2020).

Background

Argos Ready Mix has maintained an Electronic Communications Policy and a Cell Phone Policy since 2014, and it also required employees to sign an Employee Confidential Information Agreement.

Pursuant to the Cell Phone Policy, Argos suspended one of its ready-mix truckdrivers, Emmanuel Excellent, based on its suspicion that, against company policy, he kept a cell phone in the cab of his concrete truck while driving. Argos subsequently terminated Excellent. His union, Laborers’ Local No. 1652, then filed an unfair labor practice charge alleging all three policies to be overbroad and Excellent’s discharge to be unlawful.

NLRB Decision

The ALJ found all three policies maintained by Argos were overbroad and interfered with employees’ National Labor Relations Act (NLRA) Section 7 rights, and that Excellent’s termination under the Cell Phone Policy separately violated the NLRA. On review, the NLRB applied its Boeing Co. standard to analyze the three policies, and it completely reversed the ALJ’s conclusion.

With respect to the Confidentiality Agreement, the Board found the prohibition of employee disclosure of “earnings” and “employee information” was limited to disclosure of “Argos earnings” and “Argos employee information” and, therefore, was not unlawful.

Applying Caesars Entertainment Corp. (which reversed Purple Communications)the Board held the company’s restriction of employees’ use of its email system to “business purposes and not for personal purposes” also was lawful. The NLRB noted Argos’ office facility was a “typical workplace,” where employees can exercise traditional methods of Section 7 communications and had access to alternative means of communications other than Argos’ email system, such as personal email or social media.

Finally, the Board held that employees would not reasonably interpret the Cell Phone Policy to potentially interfere with their Section 7 rights as it was limited to prohibiting drivers’ possession or use of cell phones while operating commercial vehicles. The Cell Phone Policy made clear that its purpose was to ensure the safety of its drivers and the general public. Consequently, the Board reversed the ALJ and dismissed the allegation that Excellent was terminated unlawfully.

Further, the Board broadly held that it “designated rules that prohibit the use or possession of cell phones in commercial vehicles as lawful Category 1(a) rules” under its Boeing Co. standard, because such rules would not “reasonably be understood as interfering with employees’ Section 7 right to communicate with each other during nonwork time.” See our article Labor Board Clarifies Boeing Work Rules Decision, Finds Confidentiality, Media Contact Rules Lawful for more on the NLRB’s categorization of rules and policies.

Argos provides valuable insight into how this NLRB will treat challenges to the legality of workplace rules involving confidentiality, safety, and the use of workplace emails by employees.

Jackson Lewis P.C. © 2020

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Thomas M. Lucas, Jackson Lewis, complex labor litigation lawyer, disability management attorney
Office Managing Principal

Thomas M. Lucas is Office Managing Principal of the Norfolk, Virginia, office of Jackson Lewis P.C.

Mr. Lucas represents management exclusively in the full range of employment and labor law matters, including employment discrimination litigation and traditional labor law. He has represented corporate clients, including clients in the maritime, ship repair, manufacturing, healthcare and service industries, throughout the Mid-Atlantic Region and nationally for more than 30 years. Prior to entering private practice, Mr. Lucas...

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Richard F. Vitarelli Principal Jackson Lewis
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Richard F. Vitarelli is a Principal in the Hartford, Connecticut, office of Jackson Lewis P.C. Part of the firm’s national labor practice, he has over two decades of experience representing employers nationally in strategic labor relations, collective bargaining, and union organizing, including in the context of mergers and acquisitions, corporate restructuring and contract administration. He serves as general labor and employment counsel for employers and multi-employer associations in various industries, including construction, manufacturing, health care and senior living, airline, commercial laundry, transportation and distribution, state and local government.

Mr. Vitarelli's practice includes handling sophisticated collective bargaining matters, including national, multi-employer and industry agreements.  His practice also includes representation of employers in multi-employer benefits matters, including multi-employer pension withdrawal liability and Taft-Hartley Fund collection matters. His labor relations practice includes representation of employers covered by the National Labor Relations Act and the Railway Labor Act.

He regularly represents and advises clients in preventive labor relations and counter-organizing. For several years, he served as a managing author of the "Employer’s Guide to Union Organizing Campaigns" (Wolters-Kluwer/Aspen Publishers).

Before joining Jackson Lewis, Mr. Vitarelli served as practice group leader for a major regional firm, overseeing the labor, employment, benefits and immigration practice. He also served as outside general counsel to the Waterbury Connecticut Financial Planning and Assistance Board, a state takeover board created to restructure finances, labor agreements and post-employment benefits. He was a Commissioner of the Connecticut State Ethics Commission from 1997 to 2004 and served as Vice-Chair and Chair-Elect from 2002 to 2004.

While attending law school, Mr. Vitarelli was a member of the Suffolk Transnational Law Review.

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Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta
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Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented...

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