Applying the facially neutral work rule test laid out in Boeing (see here), the Board recently reversed an Administrative Law Judge decision, concluding that the employer maintained lawful workplace rules restricting employee use of (i) cell phones in commercial vehicles, (ii) the company email server for purposes not related to work, and (iii) the disclosure of confidential business information.   See Argos USA LLC d/b/a Argos Ready Mix, LLC, 369 NLRB No. 26 (Feb. 5, 2020).

Factual Background

The employer operates 300 ready-mix concrete facilities across the United States.  Employees, including the truck drivers at issue in the case at the employer’s Naples, Florida facility, are subject to several employment policies.

First, employees are bound by the company’s “Cell Phone Policy,” which places certain restrictions on employees’ ability to use cell phones while working in recognition of the “danger associated with using cell phones while driving.”  Specifically, the policy provides that cell phones are not permitted in the cab of a commercial and/or heavy equipment vehicle.

Second, employees are required to abide by the employer’s “Electronic Communications Policy,” which mandates that the company’s email system is to be used for business purposes only and not personal purposes.

Finally, employees are required to sign an “Employee Confidential Information Agreement,” which prohibits employees from disclosing “confidential Company information” to which employees have access during their employment.  “Confidential information” is defined broadly in the agreement to include, among many other things, earnings and employee information.

In 2017, the employer suspended and subsequently discharged an employee for suspected possession of a cell phone in his concrete truck in violation of the Cell Phone Policy.  His termination occurred after an unsuccessful attempt by the employer and the union representing the Naples truck drivers to resolve the issue.

The employee then challenged the implementation of the Cell Phone Policy, as well as the other policies identified above.

NLRB Reverses ALJ and Upholds Workplace Rules and Suspension/Termination of Employee

Both the Board and ALJ applied the same standard for determining whether a facially neutral work rule, reasonably interpreted, would unlawfully interfere with, restrain or coerce employees in the exercise of their Section 7 rights.  See The Boeing Company, 365 NLRB No. 154 (2017).  Since the Boeing decision, the Board now evaluates the potential impact of the rule on Section 7 rights and the employer’s proffered justification; in so doing, the Board has delineated three categories of rules that represent classification of results from the Board’s application of the new test:  category one (always lawful) because (a) the rule does not interfere with Section 7 rights or (b) the potential adverse impact on protected rights is outweighed by justifications associated with the rule); two (individualized scrutiny warranted); and three (always unlawful).

We summarize the Board’s findings below, and identify which category of rule the Board placed each of the policies at issue.

Employer’s Cell Phone Policy Restricting Use While Driving Was Lawful

Because the employer’s cell phone policy focuses on safe driving practices by prohibiting the presence of cell phones in the cabs of commercial vehicles and/or heavy equipment vehicles (weighing 10,000 pounds or more), the Board reversed the ALJ and found the policy lawful.  The Board concluded that employees would not reasonably interpret the rule as interfering with their Section 7 rights, as the cell phone restriction does not prohibit employees from communicating during non-work hours.  Moreover, the policy ensures the safety of drivers and the general public by drawing awareness to the dangers of distracted driving and prohibiting the device that enables such behavior.

In finding that the policy was lawful (in Category 1(a)), the Board emphasized that “employees are not guaranteed the right to use every method of communication available to them to discuss their terms and conditions of employment.”  Because the cell phone policy was lawful, the employer was justified in suspending and discharging the employee who violated the policy. (As an aside, the ALJ found virtually nothing in the employee’s testimony to be credible and so the judge’s decision rested exclusively on the lawfulness of the policy).  The Board reversed the ALJ and upheld the suspension and discharge.

Employer’s Electronic Communications Policy Limiting Use of Company Email Was Valid

The Board again reversed the ALJ, but largely due to the change in NLRB precedent between the ALJ ruling and the instant Board decision.  The ALJ applied Purple Communications, 361 NLRB 1050 (2014), and found that the employer unlawfully banned employee use of the company email system for personal use during non-work time.  Since the ALJ decision, the Board reversed Purple Communications, in Caesars Entertainment Corp., 368 NLRB No. 143 (2019), which reinstated the principle that employees have no statutory right to use employer email systems for Section 7 purposes in a typical workplace.  Because Caesars Entertainment Corp. applies retroactively to all pending cases, the Board reversed the ALJ, holding that the employer’s facially-neutral policy that restricts employees’ personal use of company email systems is lawful.

Confidentiality Agreement is Lawful under the Boeing Analysis

The Board concluded that the employees would not reasonably interpret the confidentiality agreement to potentially interfere with the exercise of Section 7 rights, even though the agreement prohibits the disclosure of company information, including but not limited to, earnings and employee information.  The Board reiterated that the analysis considers the perspective of an “objectively reasonable employee,” and the policy must be read as a whole.  Given this backdrop, the Board concluded that because the policy focuses on the disclosure of the company’s proprietary business information, and does not specifically prohibit disclosure of employees’ wages, contact information or other terms and conditions of employment that would be generally known or accessible from other sources, the policy fit within Boeing Category 1(a).

Board Hints That It Is Taking Aim At Recent Cases Requiring Bargaining Before Discipline

The case contained an allegation that the employer violated its duty to bargain in good faith by not giving notice of its intent to discipline and discharge the employee for violating the use of cell phones.  This rule, which did not so much overrule prior precedent as much as it created a new obligation, requires bargaining over discipline and discharge in first time contract situations.  We have reported on this issue here and here.  The Board in this case severed the allegation which is a sure sign that the new obligation will be eliminated in the near future.


The decision of the Board in this case demonstrates how even under the relaxed scrutiny of handbook provisions, reasonable minds can differ as to lawfulness of a policy.  The ALJ and Board both applied Boeing to the policies at issue but came to opposite conclusions. Here the employee was completely discredited and so the the case rested on the interpretation of a policy, which there is no suggestion was applied in a discriminatory fashion. This may suggest there is more work to be done in creating a legal standard to address common workplace policies.

Still, this decision is consistent with a recent line of cases applying Boeing’s work rule test to uphold routine common sense policies that an objectively reasonable employee would find do not interfere with his or her Section 7 rights to engage in concerted activity for the purpose of collective bargaining or other mutual aid or protection. Most unions have actively avoided going to the NLRB over such policies in recent months hoping to avoid decisions such as this one.

This decision also provides several illustrative examples of the types of rules that will be upheld, particularly rules designed to limit distracted driving and enhance workplace safety.  It bears watching whether another case with similar work rules in different workplace scenarios reaches the Board this term, so stay tuned!

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.