In AT&T Mobility LLC , 370 NLRB No. 121 (2021), the NLRB majority (Members Ring and Emanuel) held that the Employer could lawfully maintain a workplace policy prohibiting its workers from recording conversations with their co-workers, managers or third-parties, even though its application in one particular circumstance was found unlawful.  Notwithstanding the fact that the rule had been applied unlawfully, the Board majority concluded that the policy itself was lawful under Boeing Co., 365 NLRB No. 154 (2017), and overruled in part its decision in Lutheran Heritage Village Livonia, 343 NLRB 646 (2004), finding that an instance of unlawful application of a facially neutral rule does not automatically warrant a finding that the rule can no longer be lawfully maintained.

Importantly, however, Chairman McFerran disagreed in her dissent, foreshadowing how a newly-constituted Board may decide the case differently and/or abandon the Boeing framework.


An employee at a retail location, who was also a union shop steward, recorded a termination meeting between the Company’s representatives and a fellow bargaining unit-member, who had requested the employee’s presence at the meeting.  Upon learning that the shop steward recorded the meeting, his manager made him delete the recording on his work phone and threatened him with some unspecified adverse action.

The Board’s Holding 

Applying the Boeing framework, and the cases discussed in Boeing and since, the majority reiterated that an Employer’s no-recording policy constitutes a lawful “Category 1(b)” rule, meaning that the “potential adverse impact on protected rights” was “outweighed” by the employer’s business justification.  As a result, such types of rules are always lawful under Boeing. 

However, the Board also found that Employer unlawfully applied the policy when it threatened the employee, who was engaged in protected activity at the time the recording was made, for violating the policy.  The Board then consulted its decision in Lutheran Heritage, 343 NLRB 646 (2004), wherein the Board applied a three-part framework for determining whether an employer violates Section 8(a)(1) of the Act by maintaining a neutral work rule if employees reasonably construe the rule to prohibit protected activity.  The Board held that a policy could be rendered unlawful, and subject to being rescinded as part of a remedy if the policy had been “applied to restrict the exercise of Section 7 rights.”  Instead of following Lutheran Heritage and ordering the Company to rescind the policy, the Board overruled Lutheran Heritage in part, and held that an employer could still maintain a workplace rule that was “applied to restrict” an employee’s rights.  In reaching its conclusion, the Board wrote: “A blanket prohibition on the continued maintenance of such rules, simply because of a single instance of unlawful application — even if that single instance is carried out by a misguided low- or mid-level supervisor whose action does not reflect corporate policy — fails to give proper weight” to the employer’s legitimate interests in maintaining the rule.  The Board also noted that in other instances, the Board has ruled that otherwise lawful rules could remain in place, even if they restricted the exercise of an employee’s rights in certain circumstances.  The Board declined to require the Employer to disavow its no-recording policy.

Member McFerran’s Dissent

The dissenting member of the panel, Board Chairman Lauren McFerran, took direct aim at the Board’s ruling in Boeing, arguing that it permitted employers to maintain rules that “reasonably tend to chill employees in the exercise of their rights under the Act, while failing to require that employers narrowly tailor their rules to serve demonstrated, legitimate interests.”   In McFerran’s view, Boeing’s “primary aim” is to “preserve employer prerogatives, not to protect employee rights.”  While McFerran agreed that the policy was “applied to restrict” the employee’s union activity in this case, she found that employer’s no-recording policy was overbroad and should have been struck down.


The decision most certainly gives insight into some of the changes the Board may take in the coming months as its composition shifts.  Currently, the Board may be less likely to penalize employers who maintain workplace rules that are neutral on their face with respect to protected activity, but are unlawfully restrictive or overbroad, as applied to certain circumstances.  The Board continued to uphold the framework established in Boeing, and continued its evisceration of Lutheran Heritage, by finding that neutral policies should not be struck down when they have been applied to a single instance in an unlawful manner.  Chairman McFerran’s dissent provides a window into future rulings of the Board.  McFerran clearly targeted Boeing with her scathing commentary that the category-based framework for the evaluation of employer handbook rules and policies was designed to benefit employers, not employees.  Reading the tea leaves, Boeing may certainly find itself on the “chopping block” in the coming months.

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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.