Employers May Still Rely on Boeing, but for How Long?

James Korte

On May 3, 2021, the National Labor Relations Board (“NLRB” or the “Board”) found that the employer’s policy barring workers from recording conversations with their colleagues did not violate the National Labor Relations Act (the “Act”). The Board’s decision further clarified how its analysis under Boeing Co., 365 NLRB No. 154 (2017), providing three categories, should be applied in evaluating workplace rules and policies.

The employer was alleged to have violated the Act by maintaining a work rule stating, “employees may not record telephone or other conversations they have with their co-workers, managers or third parties unless such recordings are approved in advance by the legal department.” The ALJ held that the policy’s ability to serve the company’s interests was outweighed by how it interfered with workers’ Section 7 rights. The Board, however, overturned the ALJ’s decision, holding, “[t]he policy has a comparatively slight impact on employees’ Section 7 rights.” The Board further stated that “[a]lthough the policy may prevent recording of some protected conversations, the vast majority of conversations covered by the policy bear no relation to Section 7 activity.”

While the Board upheld the ALJ’s determination that the termination of an employee based on a violation of the above policy violated the Act, the Board found the policy was not ‘facially’ unlawful.    Specifically, the Board held that “[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.”

The Board’s decision is positive for Employers but will provide further fuel to the fire of the labor movement, which will urge the Biden Board to reverse Boeing.