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.

Please contact a Jackson Lewis attorney with any questions about this case or other NLRB issues.

 

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Photo of Jonathan J. Spitz Jonathan J. Spitz

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the…

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the United States. He understands the practical and operational needs of clients, helping design pragmatic strategies to minimize risk and maximize performance. He was selected as a “Leader in the Field” by Chambers USA in 2009 and 2010.

He has represented management in numerous counter-organizing drives and participated in dozens of unfair labor practice proceedings, discrimination charges and other matters before the National Labor Relations Board, the Equal Employment Opportunity Commission and various federal and state administrative agencies, as well as in collective bargaining, arbitration and in employment litigation before state and federal courts. Mr. Spitz regularly counsels employers in employee relations and discipline and discharge matters, and also assists employers in drafting employment policies and in complying with the Family and Medical Leave Act, drug testing laws and regulations, the Americans with Disabilities Act and other federal and state employment laws.

Mr. Spitz has extensive experience in assisting employers to create union and litigation avoidance strategies suitable to the individual organization, values and industry. He has led teams conducting multi-facility labor vulnerability assessments and has advised employers in responding to corporate campaigns and demands for card check and neutrality.

Mr. Spitz is a contributing author of Employer’s Guide to Union Organizing Campaigns, Aspen Publishers, 2007. In addition, he has authored many articles regarding labor and employment law issues which have appeared in national trade publications.

Mr. Spitz is admitted to practice in the Second, Fourth, Sixth, Eleventh and District of Columbia Circuit Courts of Appeals; the United States District Court for the Middle District of Georgia; and the Georgia Supreme Court.

He received his Bachelor of Arts degree, cum laude, from Tufts University in 1990. He earned his J.D. from Emory University in 1993