July 5, 2020

Volume X, Number 187

July 03, 2020

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NLRB: Employer Allowed to Ban Cellphones in Beverage Production and Warehouse Working Areas

In another decision recognizing employers’ rights to issue reasonable prohibitions even if they have some slight impact of employees’ right to engage in concerted activity under the National Labor Relations Act, a beverage manufacturer’s rules banning cell phones in food production and warehouse working areas was recently upheld by the National Labor Relations Board.  Cott Beverages Inc., 369 NLRB No. 82 (2020).

The manufacturer justified its cell phone ban based on two general concerns.  First, the presence of cell phones in the food production area risked potential contamination of the beverage product.  Indeed, the United States Food and Drug Administration requires the manufacturer “to establish and follow practices to minimize hazards inherent in food production.”  Slip op. at  2.  Second, the employer justified the warehouse cell phone ban on the basis that “warehouse employees operate five-to-six forklifts in a high traffic environment, and the distractions associated with cell phones create a safety risk.” Id.

The Board acknowledged that the cell phone ban potentially infringed on Section 7 rights “by restricting employees’ ability to . . . make audio or video recordings, . . . to communicate with each other about workplace issues or to take photographs of working conditions.”  Slip op. at 3. However, the Board found the potential infringement to be relatively slight, because the ban applied only to the food production and warehouse working areas.  The rule did not apply to non-working areas.  “Indeed, nothing in the rules restricts employees from retrieving their phones from their lockers and using them on their own time when away from their workstations.” Id.

 On the other hand, the Board accepted that the manufacturer’s rules were reasonable to “ensure the integrity of the . . . beverage production process and to satisfy FDA requirements for food production facilities.” Id.  Further, the Board agreed that the “unique distractions” posed by cell phones made restricting them reasonable not only for food production concerns, but also because of concerns about on-the-job accidents, particularly in the warehouse. Id.

In reversing the administrative law judge, the Board also held that it was irrelevant whether the manufacturer’s rules could have been drafted more narrowly.  Instead, the pertinent question was whether the manufacturer’s business justifications outweighed the slight impact on Section 7 rights, not whether the rules could have been more narrowly drafted.  Because the manufacturer’s legitimate business interests outweighed the slight impact, the rules were upheld.

It is important to note that this decision does not hold that rules banning cell phones are automatically valid in the workplace.  The employer must identify legitimate business reasons for such a rule, and they must outweigh any infringement on Section 7 rights of the affected employees. 

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 148

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About this Author

Ronald Meisburg Special Counsel Washington DC labor management relations law and policy
Special Counsel

Ronald’s practice focuses on labor management relations law and policy.

Ronald is a former National Labor Relations Board member and general counsel.

Prior to joining the firm, Ronald co-chaired the labor-management relations practice at an international law firm. Over the course of his 40-year career, which began with the Office of the Solicitor of the US Department of Labor, Ronald has handled matters arising under federal labor and employment law in complex business transactions before federal agencies and courts.

Ronald joined the NLRB in 2004, following a recess...

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Robert T. Dumbacher Labor & Employment Attorney Hunton Andrews Kurth Atlanta, GA
Partner

Bob’s practice focuses on representing and advising employers in complex labor relations and employment planning and disputes, including trade secrets/non-compete disputes and wage and hour issues.

Bob has obtained numerous positive results in litigated matters, including large-scale labor relations matters and restrictive covenants disputes, one of which was the groundbreaking relief under Georgia’s recently-passed Restrictive Covenants Act. Bob believes it is important for employers to proactively think about how to avoid or mitigate the risks of litigation and works closely with clients on these issues. He prides himself in being extremely responsive to client needs.

Bob also enjoys working with businesses and individuals to help them reach their goals on transactional matters without the need for litigation or excessive adversarialism. Bob is a member of the State Bar of Georgia, Labor and Employment Law Section and the Atlanta Bar Association. He is admitted to practice before the US District Court for the Northern District of Georgia, US Courts of Appeals for the District of Columbia, the Second Circuit, the Seventh Circuit and the Eleventh Circuit, and the Georgia Superior Courts.

Bob volunteers with the Pro Bono Partnership of Atlanta and other organizations. He is a contributing author to the Hunton Employment & Labor Perspectives blog.

Relevant Experience

  • Regularly represents clients before the National Labor Relations Board, including prosecution and defense of unfair labor practice charges. Experience also includes litigating a compliance proceeding in which back pay award and related damages of over $50 million was sought.
  • Counsels clients subjected to union organizing campaigns and coordinated corporate campaigns. Has counseled clients in several industries to successful results in several union organizing campaigns conducted under National Labor Relations Board’s expedited election rules.
  • Handles appeals of agency rulings, including those from the National Labor Relations Board. Has successfully participated in four successful appellate actions including Board rulings, including two as lead counsel.
  • Provides in-person training to clients on labor relations issues.
  • Represents clients at labor arbitrations and in collective bargaining negotiations.
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