Hunton Employment & Labor Perspectives

On February 5th the NLRB determined that an employer can, pursuant to a phone use policy, prohibit the possession and use of cell phones in the cabs of its commercial vehicles, and that a prohibition does not interfere with the Section 7 rights of its employees.

Argos Ready Mix, LLC (“Argos”) suspended and then fired an employee for suspected possession of a cell phone in the cab of an Argos concrete truck, in violation of its Cell Phone Policy (the “Policy”). The Policy, contained in Argos’ employee handbook, strictly prohibited cell phones in the cabs of commercial vehicles and heavy equipment. The Construction and Craft Workers Local Union argued that the Policy violated the employee’s Section 7 rights. The Administrative Law Judge agreed, applying the Boeing standard and determining that employees could reasonably interpret the Policy as an infringement of their Section 7 rights and that Argos’ justification for the policy (the safety of its employees and others) did not outweigh the infringement on the employees’ right to communicate.

The Board, also applying the Boeing standard, reversed the ALJ’s decision, determining that, because Argos’ justification for the Policy was included repeatedly in the Policy, and because nothing in the Policy indicated that it was intended to prohibit employees from discussing, taking pictures of, or recording their employment terms and conditions, an objectively reasonable employee would not interpret the Policy as an infringement on Section 7 rights. Using the categories created in Boeing—applicable to facially neutral employee handbook policies—the Board determined that rules prohibiting the possession or use of cell phones in commercial vehicles are lawful Category 1(a) rules and that it was not necessary for the Board to balance Argos’ justification for the Policy with any potential infringement on its employees’ Section 7 rights.

Employers that permit employees to operate employer-owned vehicles and have safety concerns related to distracted driving should consider updating their employee handbooks to include lawful policies prohibiting the possession or use of cell phones in commercial vehicles.