Over the past few years, the National Labor Relations Board has frequently weighed in on employer’s workplace and employee handbook policies, examining whether an employer’s policy impacts employees’ rights under Section 7 of the National Labor Relations Act.  Employers received a needed dose of clarity in Boeing Co., 365 NLRB No. 154 (2017), where the Board set forth rules for interpreting a facially neutral policy, rule or handbook provision.  As noted at the time, employers were sure to see Boeing’s practical impact as more cases were adjudicated under its new framework.  In David Saxe Productions, LLC, 370 NLRB No. 103 (2021) the Board reviewed an employer’s policies with respect to blogging and non-solicitation, applying Boeing’s test.  The Board also examined the employer’s policy with respect to email signature blocks, though did not apply the Boeing framework to that rule.

 Employer’s Blogging Policy

The employer’s blogging policy provided that, while acceptable when done in a professional and responsible manner, employees were not to engage in any blogging that would “harm or tarnish the image, reputation and/or goodwill” of the employer.  The Charging Party union challenged this rule as an unlawful restraint on employees’ Section 7 rights.  While the ALJ found that this policy violated Section 8(a)(1), the Board reversed.  The Board held that under a proper application of the Boeing Category 1(b) balancing analysis, the employer’s rule had a legitimate business justification and therefore was lawful.  Under the balancing test, though the rule against detrimental messages may adversely affection employees’ Section 7 rights, that concern is outweighed by the employer’s legitimate interest in protecting its reputation.

Employer’s Non-Solicitation Policy

The employer also maintained a rule that directed requests from outside people or organizations should be deferred to human resources.  The ALJ found this policy to be an unfair labor practice.  Again, the Board overruled the ALJ, finding that the rule was indeed lawful.  While the ALJ again applied Boeing Category 1(b) balancing test, the Board held that this rule, rather, was properly analyzed as a Category 1(a) rule – meaning it is lawful if, when reasonably interpreted, it does not prohibit or interfere with the exercise of NLRA rights.  Because the rule, on its face, applied to outside persons, and because “under long-settled precedent, such persons or entities have no Section 7 right to access the [employer’s] premises in the first place” except in certain inapplicable situations, the rule was indeed lawful.

Employer’s Signature Block Rule

Finally, the employer had in place an email policy stating in relevant part that employees may not customize their signature blocks.  While the ALJ and Board agreed that this policy was lawful, the ALJ did so based on Purple Communications, Inc., 361 NRLB 1050 (2014), which has been since overruled.  The Board instead applied Caesar’s Entertainment, 368 NLRB No. 143 (2019) and stated that there is “no precedential basis for finding that employees had the right to include Section 7-related messages in their signature blocks.”  Moreover, because the employer’s rule did not permit any alteration of signature blocks whatsoever, it did not discriminate against union activity nor could it possibly have a disparate impact on union activity.


It is highly likely that within a year or so, the Board will return to carefully scrutinizing each fragment of an employer policy to weed out potential problems.  For now, the current Board continues to apply precedent established in the past few years when analyzing workplace rules and policies.  While it remains to be seen whether the Board will soon return to previous era decisions such as Purple Communications or Lutheran Heritage, which Boeing replaced, employers, for now, should take comfort in the legality of their workplace and handbook rules, policies and provisions provided their policies are facially neutral, do not interfere with employees’ NLRA rights, or whether the employer has a legitimate justification that outweighs and adverse impact to employee’s NLRA rights.   The no solicitation ruling is non-controversial and perhaps was based on an error.  However, because it is possible that the blogging and signature block policies found to be lawful in this case could be found unlawful soon, employers should monitor developments at the NLRB closely.

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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.