AT&T Mobility, LLC

370 NLRB No. 121 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. AT&T Mobility, LLC and Marcus Davis. Case 05‒ CA‒178637 May 3, 2021 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN, EMANUEL, AND RING On April 25, 2017, Administrative Law Judge Arthur J. Amchan issued the attached initial decision in this pro- ceeding, finding that the Respondent violated Section 8(a)(1) of the National Labor Relations Act by maintain- ing an unlawful work rule and threatening an employee with discipline for violating the rule while engaged in pro- tected activity. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief. In finding that the Respondent violated Section 8(a)(1) by maintaining the work rule, the judge applied, among other cases, Lutheran Heritage Village–Livonia, 343 NLRB 646 (2004). While the exceptions to the judge’s decision were pending, the Board issued Boeing Co., 365 NLRB No. 154 (2017), overruling Lutheran Heritage in relevant part, setting forth a new standard for analyzing rules-maintenance allegations, and applying the new standard retroactively to all pending cases. On September 28, 2018, the Board issued a Notice to Show Cause why this case should not be remanded to the judge for further proceedings in light of Boeing, and on March 15, 2019, the Board issued an Order Remanding. On July 1, 2019, Judge Amchan issued the attached sup- plemental decision, in which he reaffirmed his prior find- ings with some modifications to his previous analysis. The Respondent filed exceptions and a supporting brief, the General Counsel and Charging Party filed answering briefs, and the Respondent filed reply briefs. The General Counsel also filed exceptions and a brief in support, the Charging Party filed an answering brief, and the General Counsel filed a reply. In addition, the Charging Party filed cross-exceptions, the General Counsel and Respondent filed answering briefs, and the Charging Party filed a reply brief. 1 We shall modify the judge’s recommended Order to conform to our findings and to the Board’s standard remedial language, and in accord- ance with our decision in Danbury Ambulance Service, Inc., 369 NLRB No. 68 (2020). We shall substitute a new notice to conform to the Order as modified. The National Labor Relations Board has considered the decision, the supplemental decision, and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the ex- tent consistent with this Decision and Order.1 I. BACKGROUND The Respondent maintains a Privacy in the Workplace Policy. The Privacy in the Workplace Policy includes a subpart entitled “Privacy of Communications” (hereinaf- ter “no-recording Policy” or “Policy”), which states: “Employees may not record telephone or other conversa- tions they have with their co-workers, managers or third parties unless such recordings are approved in advance by the Legal Department, required by the needs of the busi- ness, and fully comply with the law and any applicable company policy.” Marcus Davis, an employee at the Respondent’s Dupont Circle store in Washington, D.C., serves as a union stew- ard for the Communications Workers of America, Local 2336 (the Union) at five of the Respondent’s D.C.-area stores. An employee of the Chevy Chase store sought Da- vis’s assistance to file a grievance alleging that the Re- spondent had targeted him for discipline or termination. At the employee’s request, Davis accompanied the em- ployee to a meeting, where the Respondent presented the employee with a termination notice. Davis recorded this meeting on both his company and personal cell phones. The manager of the Chevy Chase store suspected that Davis had recorded the meeting and contacted Area Sales Manager Andrew Collings. Collings directed Dupont Cir- cle Store Manager Jason Yu to retrieve Davis’s company phone, delete the recording, and administer a coaching. After Davis returned to the Dupont Circle store, Yu met with Davis twice, first to delete the recording and later that day to administer the coaching. The next day, Collings met with Davis and told him that recording conversations violated the Respondent’s Policy and that Collings “did not want anyone held accountable for not following pol- icy.” In his Supplemental Decision, Judge Amchan found that the Policy was unlawful under Boeing, above. The judge acknowledged that the Policy served “pervasive and compelling” employer interests in safeguarding custom- ers’ personal information and the content of customer communications, but he found those interests were out- weighed by the Policy’s potential to interfere with Because we find that the Respondent may lawfully maintain its Pri- vacy of Communications policy and that the Respondent’s application of the policy via a threat of unspecified reprisals was communicated solely to one employee at a single store, we decline the Charging Party’s request for nationwide notice posting, and we will confine notice posting to that one store. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 important Section 7 rights to record and preserve evidence of unfair labor practices. The judge further found that the Respondent could protect its privacy interests through a narrower rule, given that employees receive extensive training on safeguarding customer information. Finally, the judge found that the Respondent violated Section 8(a)(1) of the Act by threatening Davis with discipline or discharge under the unlawful Policy.2 For the reasons set forth below in Section II.A, we find that the Policy is a lawful Category 1(b) rule under Boe- ing. We further find, in Section II.B, that the Respondent, by Manager Collings, violated Section 8(a)(1) of the Act by unlawfully applying that rule by threatening Davis that a refusal to comply with the rule would result in unspeci- fied reprisals. When Collings threatened Davis, he said that he “did not want anyone held accountable for not fol- lowing policy.” The only “policy” Davis did not follow was the lawful Category 1(b) Policy. This raises a further question: must the otherwise-lawful Policy be found un- lawful to maintain after all under prong three of Lutheran Heritage, 343 NLRB at 647, on the basis that the Re- spondent applied it to restrict Davis in the exercise of his Section 7 rights? We answer that question in the negative. For the reasons set forth below in Section II.C, we believe that applying a rule or policy to restrict the exercise of Section 7 rights is an unfair labor practice, but it should not make the rule thus applied unlawful to maintain. Ac- cordingly, we will overrule Lutheran Heritage in relevant part. II. DISCUSSION A. The Policy is Lawful Under Boeing. In Boeing, the Board held that “when evaluating a fa- cially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential im- pact on NLRA rights, and (ii) legitimate justifications as- sociated with the rule.” Boeing, above, slip op. at 3 (em- phasis omitted). In conducting this evaluation, the Board balances the employer’s business justifications against the extent to which the rule or policy, viewed from the per- spective of reasonable employees, interferes with em- ployee rights under the Act. Id. Ultimately, the Board places challenged rules into one of three categories:  Category 1 will include rules that the Board des- ignates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not 2 Although the General Counsel did not allege, and the judge did not find, that the threat made to Davis constituted an unlawful application of the rule, in our view this is an unavoidable conclusion, insofar as the threat expressly referenced the rule. prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on pro- tected rights is outweighed by justifications asso- ciated with the rule. . . .  Category 2 will include rules that warrant indi- vidualized scrutiny in each case as to whether the rule, when reasonably interpreted, would pro- hibit or interfere with the exercise of NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legit- imate justifications.  Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected con- duct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. Id., slip. op. at 3‒4 (emphasis in original).3 These catego- ries are not part of the Boeing standard. Except for rules designated Category 1(a), as to which no balancing is re- quired, the categories represent the results of the Board’s balancing of interests and are intended to “provide . . . greater clarity and certainty to employees, employers and unions.” Boeing, 365 NLRB No. 154, slip op. at 4. In Boeing, the Board considered a no-camera rule that prohibited employees from using camera-enabled devices to capture photos and video without a valid business need and an approved camera permit. Applying the new frame- work, the Board found that Boeing’s no-camera rule “may potentially affect the exercise of Section 7 rights, but this adverse impact is comparatively slight.” Id., slip op. at 17. The Board then found the rule served compelling em- ployer interests in safeguarding proprietary secrets and classified information stemming from Boeing’s federal defense contracts. Id., slip op. at 17‒18. The Board con- cluded that Boeing’s legitimate interests served by the no- camera rule far outweighed the adverse impact of the rule on employees’ exercise of their Section 7 rights. Id., slip op. at 17. It then stated: “Although the justifications as- sociated with Boeing’s no-camera rule are especially com- pelling, we believe that no-camera rules, in general, fall into Category 1. . . .” Id. More precisely, since rules that, when reasonably interpreted, do not potentially interfere with the exercise of Section 7 rights belong in Category 1(a), and since the Board found that Boeing’s no-camera rule does potentially interfere with the exercise of those rights, the Board in Boeing necessarily placed no-camera rules in Category 1(b). 3 In LA Specialty Produce Co., 368 NLRB No. 93, slip op. at 2‒3 (2019), the Board redesignated the subdivisions of Boeing Category 1 as (a) and (b). AT&T MOBILITY, LLC 3 The Board then addressed two other cases involving similar rules: Flagstaff Medical Center, 357 NLRB 659 (2011),4 and Rio All-Suites Hotel & Casino, 362 NLRB 1690 (2015). The rule in Flagstaff prohibited the use of cameras to record images of patients or hospital equip- ment, property, or facilities; and a panel majority found that rule lawful. 357 NLRB at 662‒663. The Board in Boeing reaffirmed that finding, explaining that the hospi- tal’s “substantial patient confidentiality interests” out- weighed the “comparatively slight” potential interference with Section 7 rights. 365 NLRB No. 154, slip op. at 19 fn. 89. Rio All-Suites involved two closely related rules: a no-camera rule and a no-recording rule. Specifically, the rules in Rio All-Suites provided that “[c]amera phones may not be used to take photos on property without per- mission from a Director or above,” and “[c]ameras, any type of audio visual recording equipment and/or recording devices may not be used unless specifically authorized for business purposes (e.g. events).” 362 NLRB at 1692. An- alyzing these rules together, the Rio All-Suites majority found them unlawful. Id. at 1692‒1694. Then-Member Johnson dissented, citing the employer’s legitimate inter- ests in “safeguarding guest privacy and the integrity of [its] gaming operations.” Id. at 1694 fn. 12. The Board in Boeing overruled Rio All-Suites in relevant part, again ap- plying a balancing analysis and criticizing the Rio All- Suites majority for failing to give the interests cited by Member Johnson “appropriate weight.” 365 NLRB No. 154, slip op. at 19 fn. 89. Most importantly, the Board in Boeing then placed the rules in Flagstaff and Rio All-Suites in Category 1, id.— i.e., Category 1(b), as with the rule in Boeing itself. Cate- gory 1 consists of rules that are categorically lawful to maintain, as opposed to Category 2 rules, which “warrant individualized scrutiny in each case.” Id., slip op. at 3‒4. And as the Board made clear in Boeing and subsequently reiterated, the classification Boeing contemplates is a 4 Petition for review granted in part on other grounds 715 F.3d 928 (D.C. Cir. 2013). 5 We disagree with the judge and our dissenting colleague that the Policy should be deemed unlawful to maintain because the Respondent could have drafted a narrower rule. The Boeing decision rejected such reasoning, explaining that employers should not be required to anticipate and exempt every conceivable Sec. 7 activity when drafting general work rules. Boeing, 365 NLRB No. 154, slip op. at 9 fn. 41. Indeed, Boeing challenged the notion that employers can do so, noting the likelihood that “one can ‘reasonably construe’ even the most carefully crafted rules in a manner that prohibits some hypothetical type of Section 7 activity.” Id., slip op. at 9. Accordingly, we reject the dissent’s declaration that “[a] narrow-tailoring requirement imposes a minimal burden on employ- ers”—and we observe that she cites no case in which the Board has of- fered acceptably tailored alternatives. Moreover, it cannot be the case that Sec. 7 rights outweigh employer justifications whenever the em- ployer could have drafted a narrower rule. For all Category 1(b) rules, it is a given that the rule interferes, to some extent, with the exercise of Sec. “classification of types of rules.” LA Specialty Produce, 368 NLRB No. 93, slip op. at 2 (emphasis added); see Boeing, 365 NLRB No. 154, slip op. at 15. Thus, Boeing held not merely that the specific no-camera and no-record- ing rules in Boeing, Flagstaff, and Rio All-Suites were law- ful Category 1(b) rules, but that no-camera rules as a type and no-recording rules as a type belong in Category 1(b). Accordingly, as a matter of law under Boeing and LA Spe- cialty Produce, the no-recording Policy at issue here is a lawful Category 1(b) rule. We would reach the same result even if Boeing required a fresh analysis of the Respondent’s Policy. Like the law- ful rules in Boeing, Flagstaff, and Rio All-Suites, the Pol- icy has a comparatively slight impact on employees’ Sec- tion 7 rights. Although the Policy may prevent recording of some protected conversations, the vast majority of con- versations covered by the Policy bear no relation to Sec- tion 7 activity. And employees remain free to speak to each other about working conditions or other protected Section 7 topics, despite the Respondent’s prohibition on recording those conversations.5 See Boeing, 365 NLRB No. 154, slip op. at 19. On the other side of the balance, the Respondent has strong business justifications for maintaining the Policy that outweigh its potential adverse impact on employees’ Section 7 rights. The Respondent has a duty under federal law to safeguard customer information and the content of customer communications. See 47 U.S.C. § 222; 47 C.F.R. §§ 64.2001‒64.2012. The judge accurately de- scribed the Respondent’s interests in maintaining the Pol- icy as “pervasive and compelling.” These interests are comparable to those arising from the employer’s duty in Flagstaff under 42 U.S.C. § 1320d-6 to protect patient pri- vacy, and to the important customer privacy interests in Rio All-Suites. On this basis as well, we find that the Pol- icy is a lawful work rule, appropriately placed into Boeing 7 rights. Put differently, a Category 1(b) rule is overbroad, and an over- broad rule always could have been drafted more narrowly. If finding that an overbroad rule could have been more narrowly tailored defeats the employer’s justification, then the justification could never outweigh the interference with Sec. 7 rights, and Boeing Category 1(b) would have no content. See Nicholson Terminal & Dock Co., 369 NLRB No. 147, slip op. at 3 fn. 6 (2020). In our dissenting colleague’s view, no employer interest can ever outweigh the possibility that an overbroad rule may chill some type of Sec. 7 activity. That means employers are free to maintain rules that serve their legitimate interests only if those rules cannot be read to overlap with Sec. 7 activity in any conceivable way—in short, pro- vided they are perfect. Since perfection is rarely if ever attained, the standard the dissent favors could turn even the most well-intentioned em- ployers into lawbreakers. More generally, our colleague devotes most of her dissent to repeating her criticisms of Boeing. For the reasons fully set forth in that decision, we remain convinced that the standard set forth in Boeing represents a balanced and commonsense alternative to Lu- theran’s one-sided focus, and we adhere to it. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Category 1(b). Accordingly, we dismiss this complaint allegation. B. The Respondent Unlawfully Applied the Policy by Threatening Davis with Unspecified Reprisals for Future Violations of the Policy. Having found that the Respondent lawfully maintained the Policy under Boeing, we now consider whether union steward Davis was engaged in protected union activity when he recorded the termination meeting of a bargaining unit employee, and if so, whether the Respondent unlaw- fully applied the Policy by threatening Davis with being “held accountable” for any future violations of the rule. The Respondent contends that the lawfulness of the Pol- icy forecloses this inquiry. It argues that because the Pol- icy is lawfully maintained under Boeing, its enforcement, even to restrict Davis’s union activity, is also lawful. And although he found the Policy unlawful, the judge agreed that “[e]nforcement of a legal rule cannot be a violation of the NLRA, unless, for example, it is enforced disparately.” We disagree. See Valley Hospital Medical Center, 351 NLRB 1250, 1254 (2007) (“[E]mployees engaged in [pro- tected concerted] activity generally do not lose the protec- tion of the Act simply because their activity contravenes an employer’s rule or policies.”), enfd. sub nom. Nevada Service Employees Union, Local 1107, SEIU v. NLRB, 358 Fed. Appx. 783 (9th Cir. 2009). Whether an employee engages in protected activity by making a workplace recording depends on the facts and circumstances of the particular case. ADT, LLC, 369 NLRB No. 23, slip op. at 1 fn. 3 (2020). In ADT, we found that employee Patrick Cuff engaged in protected union ac- tivity when, acting in his role as union steward, he made an audio-visual recording of a preelection captive-audi- ence meeting. Id. In finding that Cuff was protected under the Act, we relied in part on the judge’s determination that Cuff made his recording in support of efforts to collect and compare information the union needed. Id., slip op. at 8. It is clear that Davis was similarly acting in his capacity as union steward when he attended and recorded the ter- mination meeting of a bargaining unit employee; he was policing the parties’ collective-bargaining agreement and preserving evidence for use in a possible grievance. Moreover, although the Respondent’s no-recording Policy was soundly based on statutory and regulatory duties to safeguard customer information, the meeting Davis rec- orded was held for the sole purpose of effecting a dis- charge decision that had already been made, and the Re- spondent does not contend that private customer 6 We do not decide whether Davis’s act of recording would have re- tained the Act’s protection had private customer information been men- tioned during the meeting Davis recorded. information—such as names, addresses, account numbers, credit information, Social Security numbers, call patterns or usage—was or was likely to be mentioned in the course of that meeting. Accordingly, there is no evidence that the recording at issue here implicated the statutory or regula- tory requirements on which the no-recording Policy was based.6 Under these particular circumstances, we find that Davis was engaged in protected union activity when he recorded the termination meeting, notwithstanding that his act of recording contravened a lawful workplace rule. We further find that the Respondent unlawfully applied the Policy when Area Sales Manager Collings told Davis that he “did not want anyone held accountable for not fol- lowing policy.” Typically, of course, an employer is per- fectly entitled to warn employees that they will be held accountable if they fail to adhere to a lawful policy, in- cluding a lawful no-recording policy. Here, however, be- cause Davis’s sole act of “not following policy” was pro- tected by Section 7, Collings’s application of the rule amounted to a threat that some unspecified adverse action would be taken against Davis if he were again to engage in protected union recording activity. We do not suggest that Collings intended as much, but he did not need to for the violation to take place. See, e.g., American Freight- ways Co., 124 NLRB 146, 147 (1959) (“It is well settled that the test of interference, restraint, and coercion under Section 8(a)(1) of the Act does not turn on the employer’s motive or on whether the coercion succeeded or failed. The test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act.”). Moreover, the Board has consistently recognized that statements similar to that made to Davis constitute threats. See EF International Language Schools, Inc., 363 NLRB 199, 209 (2015) (“I would caution you from speaking on behalf of colleagues.”), enfd. mem. per curiam 673 Fed. Appx. 1 (D.C. Cir. 2017); Chinese Daily News, 346 NLRB 906, 926‒927 (2006) (stating that employee will be “held accountable” for any damage her statements cause), enfd. mem. 224 Fed. Appx. 6 (D.C. Cir. 2007); Connecticut Hospice, Inc., 342 NLRB 23, 23 fn. 1 (2004) (“be careful” about disseminating booklet detailing nurses’ rights). This is consistent with the Supreme Court’s instruction that in evaluating an employer’s statements, the Board “must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up in- tended implications of the latter that might be more readily AT&T MOBILITY, LLC 5 dismissed by a more disinterested ear.” NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969). C. The Lawful Policy Should Not Become Unlawful to Maintain on the Basis that it was “applied to restrict” Davis’s Union Activity. Having found the no-recording Policy lawful under Boeing, but also having found that the Respondent applied the Policy when it unlawfully threatened Davis, we must now consider whether the Policy became unlawful to maintain based on its application.7 We do not question that it is generally an unfair labor practice to apply a rule to interfere with the exercise of Section 7 rights. Rather, we must determine whether an otherwise-lawful rule should become unlawful to maintain under the “applied to restrict” prong of Lutheran Heritage because the rule has been applied to restrict those rights. In Lutheran Heritage, the Board set forth the following framework for determining whether an employer violates Section 8(a)(1) of the Act by maintaining a particular rule or policy: [O]ur inquiry into whether the maintenance of a chal- lenged rule is unlawful begins with the issue of whether the rule explicitly restricts activities protected by Section 7. If it does, we will find the rule unlawful. If the rule does not explicitly restrict activity protected by Section 7, the violation is dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule 7 In his cross-exceptions to the judge’s supplemental decision, the Charging Party points out that the Respondent applied its no-recording Policy to restrict the exercise of Sec. 7 rights. He does not specifically argue that the Board should find the Policy unlawfully maintained on this basis. And even if the Charging Party had advanced that argument, the General Counsel does not, and the Charging Party may not enlarge upon or change the General Counsel’s theory of the case. See, e.g., Kimtruss Corp., 305 NLRB 710, 711 (1991). Nevertheless, the Charging Party is correct. The facts of this case require that we address Lutheran prong three. In any event, the Board is not limited to the legal theories the parties present. See Kamen v. Kemper Financial Services, 500 U.S. 90, 99 (1991) (stating that “the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law”). 8 See, e.g., Cayuga Medical Center at Ithaca, Inc., 365 NLRB No. 170, slip op. at 2 (2017), enfd. mem. per curiam 748 Fed. Appx. 341 (D.C. Cir. 2018); Medco Health Solutions of Las Vegas, Inc., 364 NLRB No. 115, slip op. at 7‒8 (2016); Philmar Care, LLC d/b/a San Fernando Post Acute Hospital, 363 NLRB 551, 551 (2015) (finding arbitration agreement unlawful on “applied to restrict” grounds), vacated by Epic Systems Corp. v. Lewis, 584 U.S. ___, 138 S. Ct. 1612 (2018); Country- wide Financial Corp., 362 NLRB 1331, 1333‒1334 (2015) (same, and similarly vacated); Leslie’s Poolmart, Inc., 362 NLRB 1509, 1509 fn. 3 (2015) (same, and similarly vacated); Hitachi Capital America Corp., 361 NLRB 123, 124‒125 (2014), appeal dismissed 2015 WL 653271 (D.C. Cir. 2015); Albertson’s, 351 NLRB 254, 259 (2007). 9 As the rationale underlying the entire Lutheran framework, the Board cited Lafayette Park Hotel, 326 NLRB 824 (1998), enfd. 203 F.3d was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. 343 NLRB at 647. Lutheran Heritage prong three says a rule that has been applied to restrict the exercise of Section 7 rights cannot be lawfully maintained, and subsequent cases applying prong three have consistently taken a cate- gorical approach: if a rule has been applied to restrict Sec- tion 7 activity, maintenance of that rule is unlawful, pe- riod.8 The Lutheran Board did not explain why any in- stance of unlawful application of a facially lawful rule au- tomatically warrants a finding that the rule can no longer be lawfully maintained.9 For the reasons that follow, we conclude that it should not. Accordingly, we overrule Lu- theran Heritage in relevant part. First, the “applied to restrict” standard ignores the legit- imate and often compelling interests an employer has in being able to continue to maintain a lawful rule. Depend- ing upon the rule at issue, those interests may include maintaining production,10 securing the employer’s prem- ises,11 preventing workplace harassment,12 promoting workplace civility and protecting employees from rumor- mongering and bullying,13 and protecting the employer’s reputation and business from improper threats.14 As with most lawful workplace rules, the rule in this case, the judge found, served “pervasive and compelling” purposes. A blanket prohibition on the continued maintenance of such rules, simply because of a single instance of unlawful 52 (D.C. Cir. 1999), for the proposition that an employer violates Sec. 8(a)(1) by maintaining a rule if the rule “‘would reasonably tend to chill employees in the exercise of their Section 7 rights.’” 343 NLRB at 646 (quoting Lafayette Park Hotel, 326 NLRB at 825). But in Lafayette Park Hotel, the Board determined how employees would reasonably construe the rules at issue in that case. Thus, the chilling effect that concerned the Board in that case arose from the way the rules were worded, not the way they were applied. Moreover, the Board in Lafayette Park Hotel also emphasized the Board’s duty in rules cases to “‘work[] out an adjust- ment’” between employee rights and legitimate employer interests. 326 NLRB at 825 (quoting Republic Aviation v. NLRB, 324 U.S. 793, 797‒ 798 (1945)). As discussed below, the one-sided “applied to restrict” prong disregards this duty by failing to accord any weight to legitimate employer interests. 10 Peyton Packing, 49 NLRB 828, 843 (1943) (because “working time is for work,” employer rules prohibiting solicitation during working time are presumptively lawful), enfd. 142 F.2d 1009 (5th Cir. 1944), cert. de- nied 323 U.S. 730 (1944). 11 Verizon Wireless, 369 NLRB No. 108, slip op. at 4‒5 (2020) (rule notifying employees that personal property was subject to search); Tri- County Medical Center, 222 NLRB 1089 (1976) (stating criteria for no- access rules concerning off-duty employees). 12 Lutheran Heritage, 343 NLRB at 648‒649 (upholding rule prohib- iting harassment). 13 Motor City Pawn Brokers Inc., 369 NLRB No. 132, slip op. at 3, 5 (2020) (upholding rules prohibiting obscene or otherwise inappropriate language, badmouthing or spreading rumors, and bullying). 14 Id., slip op. at 5‒7 (prohibiting disparagement of employer). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 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 those legitimate interests. Indeed, it fails to give them any weight at all. Failure to consider the employer’s justification for a rule is precisely the concern about the Lutheran Heritage framework that was addressed in Boeing. The Board in Boeing held, consistent with Supreme Court precedent, that determining whether a rule may be lawfully main- tained requires consideration of the legitimate justifica- tions associated with the rule as well as its potential to in- terfere with Section 7 rights.15 Although the Boeing Board was addressing only prong one of the Lutheran frame- work, the “reasonably construe” prong, its requirement that weight be given to both employee rights and employer interests is equally applicable to the “applied to restrict” prong. It simply does not make sense that, under Boeing, a rule can be found unlawful to maintain, based on its wording, only after consideration of both employee rights and employer interests, but the same rule may be found unlawful to maintain, based on its application, solely be- cause it was applied in a way that restricted an employee in the exercise of his or her Section 7 rights, without any consideration of countervailing employer interests. Boe- ing instructs that interference with Section 7 rights may make a rule unlawful to maintain, but only if the interfer- ence outweighs the legitimate interests served by the rule. Such interference does not by itself establish that a chal- lenged rule is unlawful to maintain on its face, and it ought not by itself establish that a rule is unlawful to maintain because of how someone applied it. Second, Board precedent contains numerous cases that support our view that a rule may remain lawful to maintain notwithstanding that its application restricted the exercise of Section 7 rights. For example, a rule that prohibits 15 The Supreme Court stated 75 years ago that, in applying the provi- sions of the Act, the Board must work[] out an adjustment between the undisputed right of self-organi- zation assured to employees under the Wagner Act and the equally un- disputed right of employers to maintain discipline in their establish- ments. Like so many others, these rights are not unlimited in the sense that they can be exercised without regard to any duty which the exist- ence of rights in others may place upon employer or employee. Oppor- tunity to organize and proper discipline are both essential elements in a balanced society. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797‒798 (1945). Re- public Aviation is one of several decisions in which the Court has in- structed the Board to balance employee rights and employer interests. In NLRB v. Great Dane Trailers, Inc., the Court stated that it is the Board’s “duty to strike the proper balance between . . . asserted business justifi- cations and the invasion of employee rights in light of the Act and its policy.” 388 U.S. 26, 33‒34 (1967). And in NLRB v. Erie Resistor Corp., the Court spoke of the “delicate task” of “weighing the interests employees from engaging in solicitation on working time is lawful,16 and it remains lawful after it has been applied to discipline an employee for engaging in union solicita- tion on working time, which indisputably restricts that em- ployee in exercising his or her rights under Section 7.17 A lawful no-distribution rule remains lawful after it has been applied to discipline an employee for distributing union literature in a working area.18 A lawful off-duty access rule remains lawful after it has been applied to exclude an off-duty employee seeking access to the interior of the em- ployer’s facility to meet with union representatives.19 A lawful rule that prohibits employees from using company- provided information-technology resources for nonbusi- ness purposes remains lawful after it has been applied to discipline an employee for using a company-provided email system to send her coworkers an email encouraging them to join a union.20 Third, the affirmative remedy for an “applied to restrict” violation is, in practical terms, largely meaningless. When a rule is found unlawful to maintain on “applied to re- strict” grounds, the affirmative remedy is an order to re- vise or rescind the rule. See Desert Cab, Inc. d/b/a ODS Chauffeured Transportation, 367 NLRB No. 87, slip op. at 1 fn. 1 (2019) (citing cases). For a rule that has been found unlawful solely on “applied to restrict” grounds, re- vising the rule is not a meaningful option. The rule is al- ready lawful on its face, so it cannot very well be revised to make it lawful. Under the affirmative remedy, the em- ployer will still be required to rescind the rule. But be- cause the rule is lawful on its face, there is no good reason why the employer cannot reinstate it once the notice-post- ing period—typically 60 days—has expired. The result, if the employer so chooses, is merely a temporary suspen- sion of the rule. Such reinstatement of the original rule would not sup- port Board policy of creating stability in the workplace; to of employees in concerted activity against the interest of the employer in operating his business in a particular manner. . . .” 373 U.S. 221, 229 (1963). 16 See Peyton Packing, supra. There, the Board said: “It is . . . within the province of an employer to promulgate and enforce a rule prohibiting union solicitation during working hours.” Id. at 843 (emphasis added). In Essex International, Inc., 211 NLRB 749 (1974), the Board drew a distinction between “working hours” and “working time,” observing that the former “connotes the period of time from the beginning to the end of a workshift,” whereas the latter “connotes the period of time that is spent in the performance of actual job duties, which would not include time allotted for lunch and break periods.” Id. at 750. Thus, the rule of Peyton Packing as clarified in Essex International is that a rule prohibiting so- licitation during “working time” or “work time” is presumptively lawful. 17 See, e.g., Wynn Las Vegas, LLC, 369 NLRB No. 91 (2020). 18 Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962). 19 Marina Del Rey Hospital, 363 NLRB 231 (2015). 20 T-Mobile USA, Inc., 369 NLRB No. 50 (2020), supplemented 369 NLRB No. 90 (2020). AT&T MOBILITY, LLC 7 the contrary, it is likely to create confusion. To rectify the violation found, the employer must post notices stating that the National Labor Relations Board, an Agency of the United States Government, has found that the employer has violated federal labor law and has ordered it to obey the provisions of the notice, and the notice also lists the rights protected under Section 7 of the Act. One of the provisions of the notice will say that the employer will stop applying its rules to restrict its employees from exer- cising the rights “listed above”—i.e., Section 7 rights. In other words, the posted notices inform employees that their employer has violated federal law by applying a rule in a way that restricted their federally protected rights. Another provision of the notice will tell them that, in order to remedy this violation, their employer will rescind the rule—and of course, the employer must do so. Then, 60 days later, down come the notices, and without other no- tice or further explanation, the employer may, if it wishes, simply reissue the exact same rule, since it is, after all, perfectly lawful on its face. It certainly does not take much imagination to foresee that such an about face would be likely to leave employees befuddled, at best, and cyni- cal about the ability of the NLRB to vindicate their rights, at worst. These insidious effects are avoided by limiting the remedy for an “applied to restrict” violation to one that will stick: an order commanding the employer to cease and desist from applying its rules to restrict employees from exercising their Section 7 rights. Fourth, the “applied to restrict” standard undermines the certainty and predictability of Board policy that the Board sought to foster in Boeing and LA Specialty Produce, con- sistent with Supreme Court precedent. See First National Maintenance Corp. v. NLRB, 452 U.S. 666, 678‒679 (1981) (stating that management “must have some degree of certainty beforehand as to when it may proceed to reach decisions without fear of later evaluations labeling its con- duct an unfair labor practice”). Citing First National Maintenance, the Board in Boeing emphasized its “special responsibility to give parties certainty and clarity” regard- ing what rules are, and what rules are not, lawful to main- tain. 365 NLRB No. 154, slip op. at 14‒15 & fn. 74. To fulfill this responsibility, the Board established a system- atic framework for analyzing challenged rules, under which it first determines whether a rule, reasonably inter- preted, would potentially interfere with Section 7 rights, 21 Instances may arise where an employer, having once been found to have violated the Act by applying a rule to restrict the exercise of Sec. 7 rights, and having posted a remedial notice promising not to do so again, nevertheless does so again. That scenario is not presented here, and we leave it for another day. However, we recognize that under those cir- cumstances, the promise would ring hollow, and employees would rea- sonably view with skepticism the repetition of that promise in a second remedial notice. Employers are therefore on notice that a second and then, if so, whether legitimate justifications associated with the rule outweigh the potential interference, or vice versa. Id. And to provide further “clarity and certainty . . . regarding whether . . . different types of rules may be lawfully maintained,” Boeing also established the by- now-familiar three-category framework, designating rules that are lawful to maintain in Category 1 and rules that are not in Category 3. Id., slip op. at 15 (emphasis added). In LA Specialty, we reiterated that the categories represent types of rules and that the purpose of the categories is “to provide the certainty and predictability that the Supreme Court in First National Maintenance required.” 368 NLRB No. 93, slip op. at 2. Together, Boeing and LA Spe- cialty provide a framework under which the endless un- certainty that pervaded rules-maintenance questions under Lutheran Heritage can come to an end—progressively over time, as more and more types of rules are designated into categories. But the “applied to restrict” standard op- erates at cross-purposes to Boeing. Under that standard, any certainty or predictability as to the lawful status of a rule can be undone by a single, isolated unlawful applica- tion of that rule. And needlessly undone: to mitigate the chilling effect of an “applied to restrict” violation, it is not necessary (and, as explained, it’s remedially pointless) to make the rule unlawful to maintain. That chilling effect will be fully dissipated by an appropriately worded cease- and-desist remedy. As stated above, not requiring a lawful rule to be revised or rescinded based on an “applied to restrict” violation does not mean there is no violation. Unlawfully applying a lawful rule to interfere with Section 7 rights remains a violation of Section 8(a)(1) of the Act and should be en- forced as such. For all the foregoing reasons, however, applying an otherwise-lawful rule to restrict the exercise of Section 7 rights ought not render such a rule unlawful to maintain, and we hold that it does not do so. To the extent that Lutheran Heritage and cases applying prong three of the Lutheran framework are to the contrary, they are overruled. But to address the chilling effect of apply- ing a rule in this way, we also hold that “applied to re- strict” violations should be remedied by an order requiring the offending employer to cease and desist from applying its rule to interfere with Section 7 rights and to post a cor- responding remedial notice.21 unlawful application of an otherwise lawful rule could result in loss of the right to maintain the rule. The dissent suggests a different approach: order the employer to re- scind the rule, and condition its reinstatement on the addition of a dis- claimer that the rule will not be applied to Sec. 7 activity. In other words, leave the status quo as is, except add to it a requirement that any em- ployer wishing to reinstate a lawful rule must brand it with a permanent reminder of the one time the rule was unlawfully applied. This “modest DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 It remains to determine whether to apply the new stand- ard for “applied to restrict” violations retroactively or pro- spectively only. “The Board's usual practice is to apply new policies and standards retroactively ‘to all pend- ing cases in whatever stage.’” SNE Enterprises, 344 NLRB 673, 673 (2005) (quoting Deluxe Metal Furniture Co., 121 NLRB 995, 1006‒1007 (1958)). Under Supreme Court precedent, “the propriety of retroactive application is determined by balancing any ill effects of retroactivity against ‘the mischief of producing a result which is con- trary to a statutory design or to legal and equitable princi- ples.’” Id. (quoting Securities & Exchange Commission v. Chenery Corp., 332 U.S. 194, 203 (1947)). Pursuant to this principle, the Board will apply a new standard retro- actively unless doing so would work a manifest injustice. No manifest injustice will result from applying today’s holding retroactively; the General Counsel never con- tended that the Policy was unlawful to maintain under Lu- theran prong three. Moreover, applying our holding ret- roactively does not undermine the purposes of the Act. It remains an unfair labor practice to apply a rule or policy to restrict the exercise of Section 7 rights. The only dif- ference is that now, applying a rule this way does not make it unlawful to continue to maintain the rule. This is a com- paratively minor change, given that, under Lutheran, the rule could be reimplemented after the notice-posting pe- riod expired. Moreover, by preserving both the unfair la- bor practice finding and the rule, today’s holding—unlike Lutheran prong three—protects both “opportunity to or- ganize” and “proper discipline,” in accordance with the Supreme Court’s instruction in Republic Aviation, supra. Thus, failing to apply our holding retroactively would pro- duce a result that is contrary to legal and equitable princi- ples. SEC v. Chenery Corp., supra. This argues decisively in favor of retroactivity. CONCLUSION The Respondent’s no-recording Policy is a lawful Cat- egory 1(b) policy under Boeing. However, Charging Party requirement,” as the dissent characterizes it, would be tantamount to a perpetual notice-posting, and we reject it as such. The dissent also says that the remedies we adopt “do nothing to reassure employees who come to the workplace after the 60-day notice-posting period or who are oth- erwise unaware of the Board’s remedial measures.” Her first criticism disregards that employees who come to the workplace after the notice- posting period expires were not in the workplace when the rule was un- lawfully applied and thus could not have been chilled by its application. Her second criticism is directed less at our decision than at the adequacy of the notice-posting remedy in general. We decline her implicit invita- tion to take up that issue, but the fact that an employee may not read the notice or might have been on leave throughout the notice-posting period does not outweigh the compelling reasons we have set forth above for overruling Lutheran prong three. 22 See, e.g., Indian Hills Care Center, 321 NLRB 144, 144 fn. 3 (1996). Davis engaged in protected union activity when, acting in his capacity as union steward, he recorded a meeting at which a bargaining unit employee was discharged. And the Respondent violated Section 8(a)(1) of the Act when Manager Collings threatened Davis with unspecified re- prisals if he were again to engage in protected union re- cording activity in violation of the Policy. In making this threat, Collings applied the no-recording Policy to restrict Davis in the exercise of his Section 7 rights. We have concluded, however, that so applying a rule or policy ought not make it unlawful to continue to maintain the pol- icy, and we have overruled Lutheran Heritage in relevant part. But we have also held that it continues to be an unfair labor practice to apply a lawful rule to restrict the exercise of Section 7 rights, and the proper remedy for that viola- tion is an order to cease and desist from doing so and to post an appropriate notice. Exercising our remedial dis- cretion under Section 10(c) of the Act,22 we shall so order here. ORDER The National Labor Relations Board orders that the Re- spondent, AT&T Mobility, LLC, Washington, D.C., its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Applying its no-recording policy to restrict employ- ees in the exercise of their Section 7 rights. (b) In any like or related manner interfering with, re- straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its Dupont Circle facility in Washington, District of Columbia, copies of the attached notice marked “Appendix.”23 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecu- tive days in conspicuous places, including all places where 23 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed due to the Coronavirus pandemic, the notices must be posted within 14 days after the facility reopens and a substantial complement of employees have returned to work, and the notices may not be posted until a substantial complement of employees have returned to work. Any delay in the physical posting of paper notices also applies to the electronic distribution of the notice if the Respondent customarily communicates with its employees by electronic means. If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” AT&T MOBILITY, LLC 9 notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be dis- tributed electronically, such as by email, posting on an in- tranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its em- ployees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall dupli- cate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since May 19, 2016. (b) Within 21 days after service by the Region, file with the Regional Director for Region 5 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. Dated, Washington, D.C. May 3, 2021 ______________________________________ Marvin E. Kaplan, Member ________________________________________ William J. Emanuel, Member ______________________________________ John F. Ring, Member (SEAL) NATIONAL LABOR RELATIONS BOARD CHAIRMAN MCFERRAN, dissenting in part and concur- ring in part. 1 T-Mobile USA, Inc., 363 NLRB 1638, 1640‒1642 (2016), enfd. in relevant part 865 F.23d 265 (5th Cir. 2017); Whole Foods Market Group, Inc., 363 NLRB 800, 802‒804 (2015), enfd. mem. 691 Fed. Appx. 49, 2017 WL 2374843, (2d Cir. 2017); Caesars Entertainment d/b/a Rio All- Suites Hotel & Casino, 362 NLRB 1690, 1692‒1693 (2015). 2 Boeing Co., 365 NLRB No. 154 (2017). I dissented. Id., slip op. at 29. 3 Boeing not only announced a new legal standard (without notice and an opportunity for public participation), it also held that no-recording rules were categorically lawful, expressly overruling a prior decision then pending on appeal, in a violation of due process. Id, slip op. at 19 fn. 89, overruling Rio All-Suites, supra. The rule at issue in Boeing was a no-camera rule, not a no-recording rule. I explained the due-process violation in my dissent (with Member Pearce) in Boeing Co., 366 NLRB With judicial approval, the Board repeatedly has found that a variety of broad no-recording rules violated the Na- tional Labor Relations Act, because they clearly encom- passed statutorily-protected activity and were not nar- rowly tailored to address articulated employer interests.1 Today, a Board majority upholds a broad no-recording rule, reaffirming that such rules are, in fact, always lawful. What is the difference between this case and the prior cases? In the interim, a divided Board decided Boeing,2 overruling precedent and adopting an approach to work rules so forgiving to employers that it cannot be reconciled with the Act’s guarantees to employees.3 The majority follows Boeing today, reaffirming that the no-recording rule at issue here is lawful because every em- ployer is always free to maintain any no-recording rule, no matter how broad and no matter what justifications the employer does (or does not) offer for the rule. Correctly, however, the majority finds that the no-recording rule was unlawfully applied here. The majority nevertheless con- cludes—overruling precedent—that the rule was not un- lawful to maintain and therefore the Board should not or- der the employer to rescind the rule, despite its unlawful application. I agree that the employer unlawfully applied its no-re- cording rule. But, contrary to the majority, I would find that the rule was unlawfully overbroad. The Board should reject the analytical framework of Boeing. No federal ap- pellate court had ever questioned the Board’s pre-Boeing approach,4 and Boeing itself is based on demonstrably false premises, not least the claim—reiterated repeatedly in the decision today—that the traditional approach some- how excluded consideration of an employer’s legitimate interests.5 Boeing’s fundamental flaw is that it permits 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. This simply is not a reasonable interpretation of our statute, particularly when it results in a determination that certain types of No. 128 (2018), where a divided Board denied a motion to intervene filed by charging party union in Rio All-Suites. 4 See Boeing, supra, 365 NLRB No. 154, slip op. at 30‒31 (dissenting opinion) (discussing federal appellate decisions involving Board’s pre- Boeing standard). For example, the District of Columbia Circuit, where this case arises, regularly applied the Board’s pre-Boeing standard with- out difficulty. See, e.g., Midwest Division-MMC, LLC v. NLRB, 867 F.3d 1288 (D.C. Cir. 2017); Hyundai America Shipping Agency, Inc., v. NLRB, 805 F.3d 309 (D.C. Cir. 2015); Quicken Loans, Inc. v. NLRB, 830 F.3d 542 (D.C. Cir. 2016); Cintas Corp. v. NLRB, 482 F.3d 467 (D.C. Cir. 2007); Guardsmark, LLC v. NLRB, 475 F.3d 369 (D.C. Cir. 2007). 5 Boeing, supra, 365 NLRB No. 154, slip op. at 35 (dissenting opin- ion). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 rules—regardless of their specific language and justifica- tion—are always lawful. The categorical approach to work rules represents a failure to engage in reasoned deci- sion-making every time it is applied.6 Moreover, the majority’s awkwardly juxtaposed find- ings in this case illustrate the fundamental practical prob- lem with Boeing—and its manifest inconsistency with the goals of the Act. The majority finds that that the employee involved in this case, a union steward, “was engaged in protected union activity when he recorded [a co-worker’s] termination meeting, notwithstanding that his act of re- cording contravened a lawful workplace rule.” Until Boe- ing, an employer was required to tailor workplace rules so that workers would understand that they were free to en- gage in activity protected by the NLRA without subjecting themselves to discipline or discharge. After Boeing, workers must not only be brave enough to engage in pro- tected activity, but they must also be brave enough to knowingly violate workplace rules and so subject them- selves to the threat of discipline. A clearer recipe for sti- fling protected activity is hard to imagine. The majority also errs here, of course, in overruling precedent to find that the employer is free to maintain the no-recording rule, despite having unlawfully applied it. Because I would find the rule facially unlawful, I would order the employer to rescind the rule, the standard rem- edy. But (as prior cases, now overruled, reflect) rescission is also independently appropriate because the employer unlawfully applied the rule to statutorily-protected activ- ity. That application definitively demonstrated to employ- ees that the rule covers protected activity. This means that the unlawful chilling effect of the rule cannot be dispelled as long as the employer maintains the rule. Once applied unlawfully, the rule cannot be maintained lawfully. As I will explain, the majority’s reasons for not ordering rescis- sion are unpersuasive. If anything, the Board should take a stronger remedial approach in cases like this, not a weaker one. I. A brief review of the facts here is helpful. The rule at issue, titled “Privacy of Communications,” reads: 6 I have made this point before, most recently with respect to the Board’s Boeing-based determination that employers’ non-disparagement rules are always lawful, no matter how broadly they are written or what employer interests are invoked to justify them. See Medic Ambulance Service, Inc., 370 NLRB No. 65, slip op. at 7 (2021); BMW Mfg. Co., 370 NLRB No. 56, slip op. at 6 (2020) (dissenting opinion). In BMW, I explained that the “Board’s new approach is simply to label a rule . . . and then put each type of rule into the appropriate box, insulating all future rules with the same label from further scrutiny, regardless of their exact language or context.” Id., slip op. at 8. This approach “treats de- cision making as categorization.” Id. at 10. It has already resulted in a growing number of rule categories deemed always-lawful. Id. at fn. 52 Employees may not record telephone or other conversa- tions they have with their co-workers, managers or third parties unless such recordings are approved in advance by the Legal Department, required by the needs of the business, and fully comply with the law and any appli- cable company policy. The employer’s cell phone store employees are repre- sented by a union. One employee, believing that he had been targeted for discharge or discipline, asked a union steward to file a grievance. At the employee’s request, the union steward accompanied the employee to a meeting with the employer, where the employee was discharged. The steward recorded the meeting on his company cell phone, as well as on his personal cell phone. Suspecting as much, the store manager contacted a higher official, an area sales manager, who directed him to take the steward’s company phone, delete the recording, and administer a “coaching.” The store manager did so. Later, the area sales manager met with the union steward, told him that his recording of the meeting violated the employer’s no- recording rule, and stated that he “did not want anyone held accountable for not following policy.” II. Before the Board’s wrong turn in Boeing, the outcome of this case would have been different. Under the pre- Boeing framework, the Board would have determined that the challenged no-recording rule was unlawfully over- broad, distinguishing it from a rule that the Board previ- ously had upheld. A federal appellate court would likely have upheld the Board’s determination. The Board’s case law demonstrates as much. Before Boeing, the Board had found three no-recording rules unlawful, beginning with Rio All-Suites, supra, in 2015. In that case, the Board applied the standard that governed then: “[a]n employer violates Section 8(a)(1) of the Act if it maintains workplace rules that would reason- ably tend to chill employees in the exercise of their Sec- tion 7 rights.”7 The Board explained that it would follow the “analytical framework for assessing whether (collecting cases). See also LA Specialty Produce Co., 368 NLRB No. 93, slip op. at 11 (2019) (dissenting opinion) (observing that “categorical approach flies in the face of the long-established principle, applied by the Board and by the federal courts, that a rule restricting employees’ protected concerted activity must be narrowly tailored to serve an em- ployer’s legitimate interests—and not worded more broadly than neces- sary to do so”). 7 Rio All-Suites, supra, 362 NLRB at 1690, citing Lafayette Park Ho- tel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). Sec. 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [S]ection 7” of the Act, 29 U.S.C. §158(a)(1), including AT&T MOBILITY, LLC 11 maintenance of rules violates the Act [a]s set forth in Lu- theran Heritage Village-Livonia, 343 NLRB 646 (2004): If the work rule does not explicitly restrict protected ac- tivities, it nonetheless will violate Section 8(a)(1) if “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been ap- plied to restrict the exercise of Section 7 rights.” 362 NLRB at 1690, quoting Lutheran Heritage Village, 343 NLRB at 647. Turning to the no-recording rule at is- sue, the Board found that it was unlawfully overbroad. 362 NLRB at 1693. The rule was broad enough to cover statutorily-protected activity.8 “Employee photographing and videotaping is protected by Section 7 when employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.” Id.9 In turn, the employer, a hotel and casino, had not “tied [the rule] . . . to any particularized interest, such as the privacy of its patrons.” Id. “Without such a limiting principle, the Board explained, “employees are left to draw the reason- able conclusion that . . . [the rule] would prohibit their use of audio-visual devices in furtherance of their protected concerted activities.” Id. Finally, the Board noted that the case was distinguishable from Flagstaff Medical Center,10 a prior case involving a hospital’s no-camera rule, where the Board, citing the language of the rule, had concluded that employees would reasonably interpret the rule as the right “to engage in . . . concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection.” 28 U.S.C. §157. The Board has long held that the [T]he test of interference, restraint, and coercion under Section 8(a)(1) of the Act does not turn on the employer's motive or on whether the coercion succeeded or failed. The test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act. American Freightways Co., 124 NLRB 146, 147 (1959) (emphasis added). It is also long established that under this test, the mere mainte- nance of an unlawful rule violates Sec. 8(a)(1), given its potential coer- cion of employees. See Farah Mfg. Co., 187 NLRB 601 (1970). See also Quicken Loans, supra, 830 F.3d at 546, citing Lafayette Park Hotel, supra, 326 NLRB at 825. 8 The rule provided that “[c]ameras, any type of audio visual record- ing equipment and/or recording devices may not be used unless specifi- cally authorized for business purposes (e.g. events).” 9 Citing earlier decisions, the Board observed that “[s]uch protected conduct may include, for example, employees recording images of em- ployee picketing, documenting unsafe workplace equipment or hazard- ous working conditions, documenting and publicizing discussions about terms and conditions of employment, or documenting inconsistent appli- cation of employer rules.” 362 NLRB at 1693. 10 357 NLRB 659, 662‒663 (2011), review granted in part and enfd. in part 715 F.3d 928 (D.C. Cir. 2013). The rule there prohibited “[t]he use of cameras for recording images of patients and/or hospital equip- ment, property, or facilities.” The Board’s holding that the rule was lawful was not challenged on judicial review. protecting patient privacy in the hospital setting, as op- posed to prohibiting employees’ protected activity. Id. Rio All-Suites was not reviewed by a federal appellate court. As I will discuss, it was reversed by the Board in Boeing. The Board soon followed Rio All-Suites in Whole Foods, supra, again finding a no-recording rule unlaw- ful.11 On appeal, the U.S. Court of Appeals for the Second Circuit enforced the Board’s decision, endorsing its anal- ysis of the no-recording rule in every respect.12 Next, in T-Mobile, supra, the Board again found a no-recording rule unlawful, following the approach of Rio-All Suites and Whole Foods, supra. On appeal, the U.S. Court of Appeals for the Fifth Circuit enforced this aspect of the Board’s decision, citing the Second Circuit’s decision in Whole Foods.13 In sum, before Boeing, the Board had found three broad no-recording rules unlawful. Each of the rules plainly covered employee conduct protected by the National La- bor Relations Act, and none of the rules was narrowly tai- lored to serve legitimate employer interests. All of the rules were distinguishable from a hospital’s no-recording rule that the Board had found lawful in an earlier decision. Two federal courts of appeals had endorsed the Board’s decisions on review, including the narrow-tailoring re- quirement they applied. Here, the Board should follow its pre-Boeing decisions and invalidate the challenged no-recording rule. Like the 11 The rule in Whole Foods, supra, provided in part that “[i]t is a vio- lation of . . . policy to record conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership.” 363 NLRB 800, 800. 12 Whole Foods Markets Group., Inc. v. NLRB, 691 Fed. Appx. 49, 2017 WL 2374843, at *2 (2d Cir. 2017). The court observed: The Board’s finding that recording, in certain instances, can be a pro- tected Section 7 activity was reasonable. . . . So too was its finding that, because Whole Foods’ no-recording policies prohibited all recording without management approval, “employees would reasonably construe the language to prohibit” recording protected by Section 7. . . . [D]espite the stated purpose of Whole Foods’ policies—to promote em- ployee communication in the workplace—the Board reasonably con- cluded that the policies’ overbroad language could “chill” an em- ployee’s exercise of her Section 7 rights because the policies as written are not limited to controlling those activities in which employees are not acting in concert. Id. at 51. 13 T-Mobile USA, Inc. v. NLRB, 865 F.3d 265, 274 (5th Cir. 2017). The court, referring to the no-recording rule, observed that “[t]his ban is, by its own terms alone, stated so broadly that a reasonable employee, generally aware of employee rights, would interpret it to discourage pro- tected concerted activity. . . .” 865 F.3d at 274. As for the employer’s asserted business interests, the court stated that “merely reciting such justifications does not alter the fact that the operative language of the rule on its face prohibits protected Section 7 activity, including Section 7 ac- tivity wholly unrelated to those stated interests.” Id. at 275. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 rules struck down in Rio All-Suites, Whole Foods, and T- Mobile, the rule at issue is overly broad, a flat prohibition on recording “conversations [employees] have with their co-workers, managers or third parties,” absent approval by the employer’s legal department and unless “required by the needs of the business” (among other restrictions). We all agree that some recordings by employees are protected by the National Labor Relations Act.14 By its terms, the rule does not differentiate between recordings protected by the National Labor Relations Act and those that are not. It has no discernible limiting principle that might guide employees in recognizing when the rule applies. Indeed, as written, the rule applies even to conversations on non- work time and in nonwork areas: an employee could not record a union meeting held in a breakroom at lunch. The rule is in no sense narrowly tailored to serve any particular legitimate employer interest, and it is clearly distinguish- able from the hospital no-recording rule framed in terms of patient-privacy concerns that the Board upheld in Flag- staff Medical Center. Finally, here the challenged rule was actually applied to statutorily-protected activity, con- firming both its scope and its potential chilling effect on the exercise of statutory rights by employees. In short, this should be an easy case. III. Boeing, of course, radically changed the legal landscape surrounding work rules, and it is Boeing that the majority applies today. The Board’s primary aim under Boeing is to preserve employer prerogatives, not to protect em- ployee rights. In that case, a divided Board effectively shifted the inquiry away from asking whether a workplace rule, as written, had a reasonable tendency to coerce em- ployees in the exercise of their statutory rights. Instead, the Board’s focus is now on whether any employer interest that can be ascribed to the rule, by the Board, outweighs the rule’s impact on employee rights.15 This framework 14 In finding that the challenged rule here was applied unlawfully, the majority cites a recent decision, ADT, LLC, 369 NLRB No. 23, slip op. at 1 fn. 3 (2020), and correctly concludes that the union steward in this case was engaged in protected activity when he recorded the discharge meeting with management on his cell phones. The Board in ADT adopted the administrative law judge’s finding that a union steward was engaged in protected activity when he recorded the employer’s captive- audience meeting, but “emphasiz[ed] . . . the unique facts and circum- stances presented.” Id. 15 Boeing, supra, 365 NLRB No. 154, slip op. at 3. The Boeing Board stated that: [W]hen evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on [National Labor Relations Act] rights, and (ii) legitimate justifications associated with the rule. Id. Boeing, above, slip op. at 3 (emphasis omitted). The majority here observes that “[i]n conducting this evaluation, the Board balances the eliminates the long-fundamental concept of an overbroad rule. No matter how broad the rule is, a sufficient em- ployer interest may justify it. (There is no duty, then, for an employer to narrowly tailor its rules to minimize the impact on employee rights—even if such tailoring would fully preserve employer interests.) It follows, as the Boe- ing Board made explicit, that certain types of rules will always be lawful—no matter how they are drafted or the justifications offered for them—because the employer in- terests that can be ascribed to such a rule outweigh the im- pact on employee rights.16 Boeing itself identified certain rules as categorically lawful, including no-recording rules like the one at issue here, explicitly overruling the first Board to decision to invalidate a no-recording rule, Rio All-Suites, and effectively overruling its progeny, Whole Foods and T-Mobile, the cases already discussed.17 As I will explain, the majority here errs in applying both aspects of Boeing: (1) its categorical holding with respect to no-recording rules and (2) assuming that this holding is not in fact applicable here, the general standard adopted in Boeing. A. Certainly, the majority is correct in its interpretation of Boeing on the subject of no-recording rules. That decision did, indeed, find no-recording rules to be always-lawful, and applying Boeing here means upholding the no-record- ing rule in this case—the opposite of the result reached by the Board in the three, overruled cases involving very sim- ilar no-recording rules (including the two decisions en- forced on appeal by the Second Circuit and the Fifth Cir- cuit). But Boeing’s categorical holding with respect to no- recording rules is contrary to the National Labor Relations Act and to the Administrative Procedure Act, which ap- plies to the Board’s adjudications.18 The Boeing Board did not have a no-recording rule be- fore it. The challenged rule there was a no-camera rule.19 employer’s business justifications against the extent to which the rule or policy, viewed from the perspective of reasonable employees, interferes with employee rights under the Act.” 16 365 NLRB No. 154, slip op. at 3‒4. 17 Id. at 19 & fn. 89. 18 See Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359, 374 (1998). 19 The rule provided in relevant part: Possession of the following camera-enabled devices is permitted on all company property and locations, except as restricted by government regulation, contract requirements or by increased local security require- ments. However, use of these devices to capture images or video is pro- hibited without a valid business need and an approved Camera Permit that has been reviewed and approved by Security: 1. Personal Digital Assistants (PDAs) 2. Cellular telephones and Blackberrys and iPod/MP3 devices 3. Laptop or personal computers with web cameras for desktop video conferencing, including external webcams. AT&T MOBILITY, LLC 13 The Boeing Board majority examined, in detail, the highly-specific justifications for the rule advanced by the employer (an aircraft manufacturer that performed secu- rity-classified work for the federal government), which in- cluded security protocols, the federal duty to protect cer- tain information, and the need to protect proprietary infor- mation20 The majority found that these “purposes consti- tute[d] legitimate and compelling justifications for th[e] restrictions” imposed by the no-camera rule and that the “adverse impact of Boeing’s no-camera rule on NLRA- protected activity [was] comparatively slight,” since the vast majority of images or videos blocked by the [rule] d[id] not implicate any NLRA rights.” But the Boeing ma- jority did more than uphold Boeing’s no-camera rule. It determined that the “[a]lthough the justifications associ- ated with Boeing’s no-camera rule [were] especially com- pelling,” “no-camera rules, in general,” were always law- ful.21 And, crucial here, it included no-recording rules in the always-lawful “no-camera” category by overruling Rio All-Suites, as explained. Whether or not the narrow holding of Boeing—that the no-camera rule at issue was lawful under the NLRA, as newly interpreted—was permissible, it should be clear that the broader holding went farther than permitted by the Administrative Procedure Act. There was no factual or legal basis for the Boeing majority to conclude that all no- camera rules, in every workplace setting covered by the NLRA, were equivalent to the no-camera rule before the Board, much less for extending the categorical holding with respect to no-camera rules to all no-recording rules. I was correct when, in dissent, I referred to Boeing as “se- cret rulemaking in the guise of adjudication.”22 The justi- fications offered by Boeing for its no-camera rule have no obvious bearing in other American workplaces, either for no-camera rules or for no-recording rules. It is arbitrary and capricious to conclude that because an aircraft manu- facturer performing security-classified work for the fed- eral government may prohibit cameras without violating 4. Bar code scanners and bar code readers, or such devices for manufacturing, inventory, or other work, if those devices are capable of capturing images. 365 NLRB No. 154, slip op. at 17. 20 The majority found (1) that the rule was “an integral component of Boeing’s security protocols;” (2) that the rule “play[ed] a key role in en- suring that Boeing complies with its federally mandated duty to prevent the disclosure of export-controlled information or the exposure of ex- port-controlled materials to unauthorized persons; (3) that the rule “help[ed] prevent the disclosure of Boeing’s proprietary information;” (4) that the rule “limit[ed] the risk that employees’ personally identifiable information will be released;” and (5) that the rule “limit[ed] the risk of Boeing becoming a target of terrorist attack.” Id. at 18. 21 Id. at 17. 22 Recall that the Boeing Board overruled precedent sua sponte and adopted a new standard for evaluating work rules without first providing the National Labor Relations Act, a hotel-casino (as in Rio All-Suites), a grocery store (as in Whole Foods), a cell- phone store (as in T-Mobile and this case), and, indeed, every other employer subject to the statute may prohibit not only camera use, but also recordings by employees. In addition to arbitrarily maximizing employer inter- ests, the Boeing Board arbitrarily minimized employee rights. As explained, Boeing deemed the impact of the employer’s no-camera rule—and the impact of every no- camera rule and every no-recording rule—to be “compar- atively slight” because the “vast majority” of instances in which the rule would apply would not implicate any NLRA right. That conclusion is irrational from the per- spective of the Act, which aims to protect employees in the exercise of their statutory rights. First, as suggested, the balancing of interests and rights inherent in the “com- paratively slight” conclusion necessarily depends on the particular interests of a particular employer. The interests of every employer subject to the Act cannot be assumed to be identical to Boeing’s interests. Second, it is likely true for many, perhaps most, work rules that the “vast major- ity” of instances in which they apply will not involve em- ployees engaged in statutorily protected activity. Indeed, before a rule is challenged under the Act, employees might never have engaged in protected activity at all or even con- templated doing so. But this does not mean that the rule— if, by its terms, it covers protected activity—lacks a rea- sonable tendency to chill employees who do wish to en- gage in protected activity, even for the first time. The Na- tional Labor Relations Act exists to ensure that all statu- tory employees are free to exercise certain rights, whether they do so often, occasionally, or rarely. In short, the Boeing approach to work rules, with its fo- cus on categorization, is no substitute for reasoned deci- sion-making, either as a general matter or, as reflected here, with respect to no-recording rules in particular. The majority errs in applying Boeing’s categorization of no- recording rules as always-lawful in this case. notice and an opportunity for public participation. In dissent, I observed that: No party and no participant in this case—which involves a single, no- photography rule—has asked the Board to overrule Lutheran Heritage. Nor has the Board asked anyone whether it should. Over the minority’s objection, the Board majority has refused to notify the public that it was contemplating a break with established precedent. It has refused to in- vite amicus briefing from interested persons, even though this has be- come the Board’s wise norm in the years following Lutheran Heritage. Without the benefit of briefs from the parties or the public, the majority invents a comprehensive new approach to work rules that goes far be- yond any issue presented in this case and, indeed, beyond the scope of Lutheran Heritage itself. This is secret rulemaking in the guise of ad- judication, an abuse of the administrative process. . . . Id., slip op. at 30 (emphasis added; footnote omitted). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 B. The grave flaws of the Boeing framework go even deeper, however. By rejecting the principle of over- breadth, and the corresponding duty of employers to nar- rowly tailor their rules to avoid infringing on employee rights, Boeing impermissibly privileges employer prerog- atives. A narrow-tailoring requirement imposes a minimal burden on employers.23 They must simply draft their rules in light of the National Labor Relations Act—a federal statute with broad and clear coverage, enacted more than 85 years ago, in 1935. Ignorance of the Act at this late date is surely no excuse. When the Board enforced a nar- row-tailoring requirement, the result was not to prohibit an employer from maintaining a rule that addressed a par- ticular subject and that served legitimate interests, but only to require that such a rule be drafted appropriately— i.e., with recognition of its potential to infringe on employ- ees’ statutory rights. Federal appellate courts, including the Supreme Court, have pointed out this fact repeatedly, as the Second Circuit notably did in Whole Foods, supra.24 Nothing in the National Labor Relations Act or its pol- icies suggests that in drafting rules, employers are some- how free to prohibit statutorily-protected conduct by em- ployees even when that is unnecessary to serve a legiti- mate employer interest that might outweigh employees’ rights under the Act in particular circumstances. As the Board has observed: [T]he Board and the courts have long held that the exist- ence of an overbroad rule violates the Act based on its potential chilling effect on employees’ exercise of their Section 7 rights. . . . [T]he mere maintenance of an over- broad rule tends to inhibit employees who are consider- ing engaging in legally protected activities by convinc- ing them to refrain from doing so rather than risk disci- pline. Continental Group, Inc., 357 NLRB 409, 411 (2011) (ci- tations omitted).25 Neither the Boeing Board, nor any Board decision applying Boeing has articulated a reason- able interpretation of the Act that justifies abandoning this long-established principle. The failure to narrowly tailor 23 Embracing Boeing, my colleagues disagree, insisting that a narrow- tailoring requirement is virtually impossible to meet. To justify elimi- nating the requirement, of course, that is the position that must be taken: employers cannot narrowly tailor their rules; therefore, they must not be required to do so. I reject that proposition, and, as I explain below, the courts have effectively rejected it, too. 24 See Beth Israel Hospital v. NLRB, 437 U.S. 483, 503 (1978) (ob- serving that in invalidating a hospital’s work rule, the “Board ha[d] not foreclosed the hospital from imposing less restrictive means of regulat- ing organizational activity more nearly directed toward the harm to be avoided”); Whole Foods, supra, 691 Fed. Appx. at 51 fn. 1; Flex Frac Logistics, LLC v. NLRB, 746 F.3d 205, 210 fn. 4 (5th Cir. 2014); NLRB v. Northeastern Land Services, Ltd., 645 F.3d 475, 483 (1st Cir. 2011); a rule does not defeat the employer’s justification for a rule, only the justification for the rule as drafted: the em- ployer may cure the defect. But it must cure the defect, in order to prevent the rule from chilling employees in the exercise of their statutory rights. For this reason, too, the Board should abandon the Boe- ing framework and the majority errs in applying the frame- work here. C. But even assuming that the Boeing framework is statu- torily permissible, the majority’s “fresh analysis” under Boeing here—an alternative holding to simply applying the categorical determination in Boeing that no-recording rules are always lawful—is erroneous, as well. In osten- sibly balancing the statutory rights of employees and the interests of the employer here, the majority relies on a se- ries of incorrect or immaterial propositions. First, the majority concludes that the no-recording rule here “has a comparatively slight impact on employees’ Section 7 rights” because “the vast majority of conversa- tion covered by the [rule] bear no relation to Section 7 ac- tivity” and because “employees remain free to speak to each other about working conditions or other protected Section 7 topics,” even if they cannot record these con- versations. As already suggested, from the Act’s perspec- tive—focusing on the Congressional goal of protecting employees’ exercise of statutory rights—what matters is that the rule undeniably does cover and prohibit Section 7 activity (as the majority acknowledges and as illustrated by the facts here). Similarly, that the no-recording rule does not reach other types of Section 7 activity is also im- material. There is no support in the Act, in the Supreme Court’s decisions, on in Board precedent for the proposi- tion that an employer is entitled to restrict certain Section 7 activity by employees at work simply because it permits other such activity. And, in any case, there is no effective substitute for protected recording activity. Where an em- ployee wishes to document an investigatory interview, an unsafe working condition, a captive-audience meeting to exercise or vindicate his rights under the Act, making a Cintas Corp., supra, 482 F.3d at 470. In Whole Foods, the Second Cir- cuit took care to point out that its decision was “not to say that every no- recording policy will infringe on employees’ Section 7 rights.” 691 Fed. Appx. at 51 fn. 1. Rather, “[i]t should be possible to craft a policy that places some limits on recording audio and video in the work place that does not violate the Act,” and the employer’s “ interests in maintaining such policies can be accommodated simply by their narrowing the poli- cies’ scope.” Id. 25 As the Board pointed out in Continental Group, the Board’s over- breadth doctrine with respect to employer work rules is analogous to the First Amendment overbreadth doctrine applies to statutes. 357 NLRB at 411, citing Double Eagle Hotel & Casino v. NLRB, 414 F.3d 1249, 1258 (10th Cir. 2005), cert. denied 546 U.S. 1170 (2006). AT&T MOBILITY, LLC 15 recording is uniquely effective—and a prohibition on re- cording has more than a “comparatively slight” impact on Section 7 rights. Second, after giving too little weight to employees’ stat- utory rights, the majority give far too much weight to the employer’s interests. The majority (citing 47 U.S.C. §222) asserts that the “Respondent has a duty under fed- eral law to safeguard customer information and the con- tent of customer communication” and that this obligation suffices to justify the no-recording rule, despite its impact on Section 7 rights. But, by its terms, the rule is not linked to this duty at all. Nor is there any apparent connection between the rule and the employer’s interest in “safe- guarding customer information and the content of cus- tomer communication.” Quite clearly, the rule prohibits employee recordings that have nothing to do with custom- ers at all—and everything to do with protected activity un- der the Act. The majority tellingly provides no actual ex- amples of a situation where Section 7-protected recording by employees might interfere with the employer’s duty to safeguard customer information and communication.26 Any such situation, of course, could be addressed by a nar- rowly-tailored rule—although Boeing views that fact as immaterial. In short, even under Boeing’s employer-friendly analyt- ical framework, the no-recording rule in this case should be found unlawful. The balance between employee rights and employer interests tips clearly in favor of the former. The majority’s contrary conclusion is unreasonable. IV. Although the majority finds (incorrectly) that the no-re- cording rule was facially valid, it also finds that the rule was unlawfully applied in this case. I agree with that sec- ond finding, essentially for the reasons that the majority gives. But I draw a different conclusion than the majority does from the unlawful-application finding. In my view, because the no-recording rule was unlawfully applied, it cannot be lawfully maintained (whatever the facial valid- ity of the rule) and the Board must order the employer to rescind it. Invoking Boeing, the majority concludes that because the rule is facially valid (in its incorrect view), the Board must permit it to be maintained—even after its un- lawful application27—given the legitimate employer inter- ests served by the rule (as opposed to its illegitimate inter- est in being able to invoke a rule to squelch and chill stat- utorily-protected activity). 26 Contrary to the majority, the contrast between this case and Flag- staff, supra—where the Board upheld a no-camera rule in a hospital, framed in terms of patient privacy—is clear, as the Board pointed out in T-Mobile, supra, a case also involving a cell phone company. 363 NLRB 1638, 1642 fn. 13 (observing that rules in Flagstaff “reasonably According to the majority, any chilling effect on Section 7 activity caused by the unlawful application of the rule is fully remedied by ordering the employer to cease-and-de- sist from applying the rule unlawfully and by requiring the employer to post a notice to employees stating that will not apply the rule unlawfully. This conclusion is incor- rect. Once a rule is unlawfully applied to Section 7 activ- ity, employees will continue to be chilled by it, so long as the rule is maintained in its original form. By its actions, the employer has conclusively demonstrated to employees that the rule can and does apply to Section 7 activity. A Board order and notice do nothing to reassure employees who come to the workplace after the 60-day notice-post- ing period or who are otherwise unaware of the Board’s remedial measures. None of the other rationales for the majority’s approach mitigate its fundamental shortcom- ing. First, the majority argues that the “’applied to restrict’ standard ignores the legitimate and often compelling in- terests an employer has in being able to continue to main- tain a lawful rule.” This argument misses the mark. Once an employer has unlawfully applied a rule, the employers’ interests in maintaining the rule must become secondary to the need to protect employees’ Section 7 rights. The rule has been used by the employer as the instrument to commit an unfair labor practice. An order to rescind the rule effectively takes that particular instrument away from the employer, going forward, so that employees need not fear that it will be used against them. Second, the majority cites decisions—separate, of course, from the precedent overruled today—that assert- edly “support [the] view that a rule may remain lawful to maintain notwithstanding that its application restricted the exercise of Section 7 rights.” But none of the decisions cited specifically address the issue posed in this case: whether ordering rescission of a rule that has been unlaw- fully applied is an appropriate remedy under the Act. Third, the majority asserts that the “affirmative remedy for an ‘applied to restrict’ violation is, in practical terms, largely meaningless.” According to the majority: For a rule that has been found unlawful solely on “ap- plied to restrict” grounds, revising the rule is not a mean- ingful option. The rule is already lawful on its face, so it cannot very well be revised to make it lawful. Under the affirmative remedy, the employer will still be re- quired to rescind the rule. But because the rule is lawful conveyed that they concerned the hospital’s obligation to protect patient privacy interests and prevent wrongful disclosure of individually identifiable health information”). 27 In a fn., the majority suggests that a rule-rescission requirement might be appropriate if the employer, having applied the rule unlawfully once, does so again, despite the Board’s original order. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 on its face, there is no good reason why the employer cannot reinstate it once the notice-posting period—typi- cally 60 days—has expired. The result, if the employer so chooses, is merely a temporary suspension of the rule. There are two answers to this argument. To begin, even if “merely a temporary suspension of the rule” is the likely result of a rescission order, that suspension is nevertheless meaningful. It imposes a consequence on the employer for its unlawful application of the rule that tends to deter future unlawful conduct, and it mitigates, even if to a lim- ited extent, the chilling effect of continuing to main a rule that was used to commit an unfair labor practice. Next, with respect to revision of the rule, if a change in the Board’s remedial approach is warranted, then it is not the step the majority takes here. Rather, the Board should re- quire employers who wish to reinstate an unlawfully-ap- plied rule to include an affirmative disclaimer in the rule that it will not be applied to statutorily-protected activity.28 This modest requirement would impose a minimal burden on employers, would do no harm to any legitimate em- ployer interest, and would address the need to protect em- ployees against the reinstated rules potential chilling ef- fect.29 Fourth, the majority the argues that the “‘applied to re- strict’ standard undermines the certainty and predictability of Board policy that the Board sought to foster in Boeing and LA Specialty Produce,” because “the lawful status of a rule can be undone by a single, isolated unlawful appli- cation of that rule.” As I have explained in dissent, how- ever, the “certainty and predictability” sought by Boeing reflects little more than a desire to broaden employer pre- rogatives at the expense of employee rights, by finding more and more rules to be lawful for employers to main- tain.30 If employers who unlawfully apply a rule can no longer be certain that they can maintain the same rule af- terwards, then they have only themselves to blame. They have forfeited a prerogative by abusing it. 28 The majority rejects my proposal as a “perpetual notice-posting” requirement. But requiring a disclaimer simply permits the employer to keep its rule—despite its prior, unlawful application—while reassuring employees that they have nothing to fear from the rule if they exercise their Sec. 7 rights. Maintaining the disclaimer is no more burdensome to the employer than maintaining the rule. Nor can the employer have any legitimate objection to the disclaimer itself, which does not require the employer to acknowledge its own wrongdoing, but only the statutory rights of employees subject to the rule. 29 Remarkably, the majority seems to argue that the shortcomings of the Board’s existing rescission remedy are justification for today’s deci- sion to do even less to protect employees. According to the majority, permitting an employer to reinstate a rule that it has been ordered to re- scind “would be likely to leave employees befuddled, at best, and cynical V. This case illustrates the broad and harmful reach of the Board’s decision in Boeing and its misguided approach to employer work rules. The majority errs in upholding the no-recording rule at issue in this case, which was clearly unlawful under pre-Boeing, judicially-endorsed Board precedent. But this case also demonstrates that there are limits to how employers may use work rules: even if the rule is facially lawful (as the majority finds here), it may not be applied to stifle employees’ protected concerted ac- tivity under Section 7 of the National Labor Relations Act. There is a final twist, however. Despite finding that the no-recording rule was unlawfully applied, the majority re- verses precedent and refuses to order the employer to re- scind the rule, leaving it in place to chill employees’ exer- cise of their statutory rights in the future. What the major- ity gives with one hand, then, it takes away with the other. Where the majority has chosen to protect employees, I agree with it. Where it has failed to do so, I dissent. Dated, Washington, D.C. May 3, 2021 ______________________________________ Lauren McFerran, Chairman NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union about the ability of the NLRB to vindicate their rights, at worst.” “These insidious effects are avoided,” the majority says, by no longer requiring employer to rescind the rule. As I suggest, a better way to avoid em- ployee befuddlement and cynicism is to strengthen the Board’s remedy in this situation, by requiring an employer who wishes reinstate a re- scinded rule to include a disclaimer of any intention to apply the rule to Sec. 7 activity. It is decisions like this one, unfortunately, that must breed cynicism among employees about the Board’s ability to vindicate their rights. 30 Medic Ambulance, supra, 370 NLRB No. 65, slip op. at 13 (dis- senting opinion); LA Specialty, supra, 368 NLRB No. 93, slip op. at 8, 13 (dissenting opinion); Boeing, supra, 365 NLRB No. 154, slip op. at 37‒38 (dissenting opinion). AT&T MOBILITY, LLC 17 Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT apply our no-recording policy to restrict you in the exercise of the rights listed above. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. AT&T MOBILITY, LLC The Board’s decision can be found at https://www.nlrb.gov/case/05-CA-178637 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273‒1940. Paul J. Veneziano, Esq., for the General Counsel. Stephen J. Sferra and Jeffrey A. Seidle, Esqs. (Littler Mendelson, P.C., Cleveland, Ohio), for the Respondent. Katherine A. Roe, Esq., (Communication Workers of America, Washington, D.C.), for the Charging Party. SUPPLEMENTAL DECISION STATEMENT OF THE CASE ARTHUR J. AMCHAN, Administrative Law Judge. I issued a decision in this matter on April 25, 2017. On September 28, 2018, the Board issued a Notice to Show Cause as to why the complaint allegations involving the maintenance of an allegedly unlawful work rule should not be severed and remanded for fur- ther proceedings consistent with the standards set forth in the Board’s decision in Boeing, 365 NLRB No. 154, slip op. at 14‒ 17 (2017). On March 19, 2019, the Board issued an Order re- manding this matter to me for preparation of a supplemental de- cision addressing the complaint allegations in light of Boeing. This case was tried in Washington, D.C. on February 10, 2017. Marcus Davis filed the charge on June 20, 2016 and the General Counsel issued the complaint on October 14, 2106. The General Counsel alleged that Respondent violated Section 1 The Dupont store has public and non-public areas. The non-public areas are in the back of the store and include restrooms, a break area and the store manager’s office. There is a computer in the non-public back 8(a)(1) of the Act by maintaining an overly broad Privacy of Communications rule and by threatening employees with dis- charge if they violate this rule. In response to the Notice to Show Cause, the General Counsel requested that the Board dismiss the allegation regarding Respondent’s maintenance of its Privacy of Communications policy. The Board denied that request and re- manded the entire case to me for further consideration. The Gen- eral Counsel in its brief on remand renews its request that this complaint allegation be dismissed, while requesting that I find that Respondent violated Section 8(a)(1) by threatening to dis- charge employees for violating the rule. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, Respondent and the Charging Party Union I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a limited liability company which has facilities nation-wide, including retail stores in the District of Columbia, where it annually provides wireless telecommunications devices and services. Respondent derives gross revenues in excess of $100,000 annually and purchases and receives goods and mate- rials in excess of $5000 from outside the District of Columbia. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Communications Workers of America, (of which the Charging Party is a member) is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES Marcus Davis is a retail sales associate at Respondent’s store at Dupont Circle in Washington, D.C. He is also the union stew- ard for CWA Local 2336 for five stores in the Washington, D.C. area. On or about May 19, 2016, Davis attended a meeting in the store manager’s office at Respondent’s Chevy Chase, D.C. store. The purpose of the meeting was for Respondent to present a termination notice to a sales associate who worked at the Chevy Chase store. Davis recorded the meeting, which lasted approxi- mately 20 minutes, on his company owned phone and his per- sonal cell phone, without telling management. The Chevy Chase store manager, Richard Belot, suspected that Davis might have recorded the meeting. He called his su- pervisor, Area Sales Manager Andrew Collings, for instructions. Collings consulted with Respondent’s human resources depart- ment. When Collings returned Belot’s call, Davis had returned to the Dupont Circle Store. Collings then called Jason Yu, the manager of that store. He instructed Yu to retrieve the phone, delete the recording and counsel Davis. Yu complied with Col- lings’ instructions. He called Davis into his office, first to delete the recording and a second time to administer the coaching.1 The next day Collings conducted a routine visit to the Dupont Circle store, which he did about once a week. Collings spoke to Davis in the backroom of the store. Collings told Davis that of the store where employees can access emails and process products and services. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 recording conversations inside any of Respondent’s stores vio- lated company policy. He then said that Davis should not en- courage other employees to record in-store conversations and that “he did not want anyone held accountable for not following policy,” Tr. 65.2 The policy in question is found on Respondent’s intranet site, as part of Respondent’s Privacy in the Workplace Policy, and provides: Privacy of Communications Employees may not record telephone or other conversations they have with their co-workers, managers or third parties un- less such recordings are approved in advance by the Legal De- partment, required by the needs of the business, and fully com- ply with the law and any applicable company policy. G.C. Exh. 2; R. Exh. 1. On May 27, 2016, Collings sent an email to Davis and Local Union Vice President Robin Jones reiterating that employees are not permitted to record conversations inside any of Respondent’s stores, citing the policy set forth above. The protection of customer information and data is covered by other policies not at issue in this case, Exhs. R‒5, 6, 7, and 8. AT&T Mobility has gone to great lengths to protect customer data. The legal and business consequences of a breach of cus- tomer data for Respondent are very significant, Tr. 70‒100. Analysis Relevant case law The Board has held that an employer violates Section 8(a)(1) when it maintains a work rule that reasonably tends to chill em- ployees in the exercise of their Section 7 rights, Lafayette Park Hotel, 326 NLRB 824, 825 (1998). In Lutheran Heritage Vil- lage-Livonia, 343 NLRB 646, 647 (2004).the Board held that a rule is unlawful if it explicitly restricts activities protected by Section 7. If this is not true a violation is established by a show- ing that 1) employees would reasonably construe the language to prohibit Section 7 activity; or 2) that the rule was promulgated in response to protected activity or 3) that the rule has been ap- plied to restrict the exercise of Section 7 rights. In Boeing, 365 NLRB No. 154, slip op. at 14‒17 (2017), the Board overruled Lutheran Heritage and held that in cases in which one or more facially neutral policies, rules or handbook provisions when rea- sonably interpreted would potentially interfere with Section 7 rights, the Board will evaluate two things: (1) the nature and extent of the potential impact on NLRA rights and (2) the legiti- mate justification associated with the requirement. The Board further stated that it is its duty was to strike a proper balance be- tween these considerations. Several relatively recent decisions have addressed photo- graphing and recording by employees on company property. In Flagstaff Medical Center, 357 NLRB 659 (2011) the Board found that a hospital’s rule prohibiting the use of cameras for recording images of patients and/or hospital equipment, 2 Davis’ account of this conversation is that Collings said, “I’ve fired people for that.” I credit Collings but do not regard the difference in their versions of the conversation to be significant. Either one communicated property, or facilities, did not violate the Act. In Rio All-States Hotel & Casino, 362 NLRB 1690 (2015) the Board found a rule that prohibited the use of any type of audio- visual recording equipment and/or recording device unless au- thorized for business purposes, to be illegal. The Board distin- guished the case from Flagstaff Medical Center by concluding that the Casino’s rules included no indication that they were de- signed to protect privacy or other legitimate interests. The Boe- ing decision explicitly overruled Rio All-States Hotel & Casino. Neither Flagstaff Medical Center nor Boeing are necessarily dispositive of the instant case. In the Boeing decision, the Board stated that it may draw reasonable distinctions between or among different industries and work settings, slip opinion at 15. Re- spondent has not established that its security concerns, that are not otherwise protected by its policies on customer data and in- formation, are comparable to the security concerns present in a hospital, i.e., patient medical information under HIPPA (Flag- staff) or a military/civilian aircraft manufacturing plant (Boe- ing). Also a general matter, audio recording is far less likely to disclose confidential information than photography. In Whole Foods Market, Inc. 363 NLRB 800 (2015) enfd. 691 Fed. Appx.( 2d Cir. 2017) the Board found illegal two company rules. One prohibited the recording of phone calls, images, or company meetings with any recording device unless prior ap- proval is received from management, or all parties to the conver- sation consent to its recording. Violation of this rule could lead to discipline up to and including discharge. The second rule was similar. Whole Foods stated as its pur- pose the elimination of a chilling effect on the expression of views if one person is concerned that the conversation is being secretly recorded. The Board found both rules illegal. The Board citing Rio All-States Hotel & Casino stated that photog- raphy and audio or video recording in the workplace…are pro- tected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present. The Board distinguished Flagstaff Medical Center by concluding that Whole Foods’ business justification is not nearly as pervasive or compelling as the patient privacy interest in Flag- staff. The Board, relying on Rio All-States Hotel and Whole Foods, reversed the Judge’s finding that an employer’s rule was not vi- olative in T-Mobile, Inc., 363 NLRB 1638 (2016), enf. denied 865 F. 3d 265 (5th Cir. 2017). In T-Mobile, while tacitly ac- knowledging the employer’s interest in maintaining employee privacy, confidential information and promoting open commu- nication, the Board found the rule to be violative because it was not narrowly tailored to promote its legitimate interests and would reasonably be construed to restrict employees’ Section 7 rights. Further in both the Whole Foods and T-Mobile decisions, the Board noted that protected conduct may include a number of things including recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions. The Board has stated, “moreover, our case law is replete with to Davis that employees might be disciplined for violation of Respond- ent’s rule. AT&T MOBILITY, LLC 19 examples, when photographs or recording, often covert was an essential element in vindicating the underlying Section 7 right,” 363 NLRB 800, 802 fn. 8. My experience as an NLRB judge for over 20 years confirms that assessment, e.g. Spirit Construction Services, 351 NLRB 1042, 1042‒43 (2007)[audio recording of an on-site threat of business closure by a supervisor in response to a union organiz- ing drive]; Valmet, Inc., 367 NLRB No. 84 (February 4, 2019), slip opinion pp. 7‒9 [employee audio recording of company’s mandatory meeting during an organizing drive]. Kumho Tires, JD‒42‒19, 2019 WL 2106674 (2019). Without the recording in these cases, it may have been impossible to determine that the employee’s version of events was more credible than that of the Respondent. Thus, the complaint may well have been dismissed and the employer would have successfully interfered with em- ployee’s Section 7 rights.3 Moreover, there will be situations in which pro-union employ- ees concertedly agree to record an employer’s captive audience address based upon the employer’s prior campaign activities. These employees would be protecting their Section 7 rights and the act of recording would thus be protected. A blanket rule, such as Respondent’s, would clearly impact Section 7 rights in such a context. A rule like Respondent’s might also interfere with an employee’s ability to prove that his or her conduct was concerted by recording a conversation with co-workers. Con- versely, an employer may wish to record workplace disputes in support of its discipline. In grievance or arbitration proceedings, such evidence would be admissible and persuasive. The law as applied to this case Respondent’s rule prohibiting recordings is illegal Pursuant to Boeing, the first issue to be addressed is whether Respondent’s facially neutral rule has any impact of employees’ Section 7 rights. As the Union points out, the very fact that the rule was applied to protected activity establishes its impact of employee rights.4 Moreover, the rule in allowing Respondent’s legal department unfettered discretion as to when to allow conversations to be rec- orded is an open invitation to disparate treatment of employees engaged in protected activity. Generally, a rule that requires pre- approval by the employer to engage in protected activity violates the Act, Brunswick Corp., 282 NLRB 794, 795 (1987). In addition, the rule has a material impact in preventing em- ployees from preserving evidence of employer unfair practices 3 It may be impossible to get a sufficient number of employees to accurately testify as to what they heard for a variety of reasons, including inattention, coercion and poor or conflicting memories. Also, it is often very difficult to make credibility determinations in cases in which the only evidence is conflicting versions of events, par- ticularly when the conflict is between only two witnesses, e.g., Loudon Steel, Inc. 340 NLRB 307 (2003). Witnesses’ demeanor is more often than not a very unreliable way to make such determinations. 4 In Boeing, the Board delineated 3 categories of “rules.” Category 1 rules are those which are lawful because they either (1) do not prohibit or interfere with employee Sec. 7 rights when reasonably interpreted, or (2) the employer’s justification for the rule outweighs the potential ad- verse impact on protected rights. Category 2 rules are those which war- rant individualized scrutiny as to whether they prohibit or interfere with as an employee did in Sprit Construction and Valmet. There would be little reason for an employee will go to the trouble of recording a conversation or speech by a manager, supervisor, or agent unless he suspects that conversation will touch upon wages, hours and other conditions of employment. The em- ployee in Valmet recorded the manager’s speech precisely be- cause he knew it involved the Union’s organizing drive. The same is true of the employee recording a captive audience speech in Kumho Tires, JD‒42‒19, 2019 WL 2106674 (2019). As to the second prong of Boeing, Respondent has a pervasive and compelling interest in the privacy of customer information (Customer Proprietary Network Information (CPNI),5 the con- tent of customer communications and Sensitive Personal Infor- mation (SPI).6 The issue in this matter is whether the business justification for Respondent’s rule outweighs its impact on em- ployees’ Section 7 rights. On balance, the adverse impact of Respondent’s privacy of communications rule on employee rights outweighs its justifica- tions. First of all, it is not limited to work time and/or conversa- tions in work areas, or even conversations on Respondent’s premises. Secondly, Respondent could protect its substantial in- terests with a much narrower rule, e.g., that makes it a violation of company policy to record in any manner customer information or data. I would note that Respondent prohibits accessing any such data and considers it a breach of its duty if such data is ac- cessed even inadvertently. Employees are trained to understand what constitutes CPNI and SPI, so that they do not even inad- vertently access such information. Respondent does so because, as its brief sets out in great detail, there are potential draconian consequences for unauthorized access to CPNI and other cus- tomer data, as well as its disclosure. Since employees are so thoroughly trained not to access CPNI and SPI, it should not be particularly burdensome to promulgate and enforce a rule that prevents the audio and visual recording of such data, just as it prohibits the unauthorized viewing of such data. Indeed, Respondent’s Code of Business Conduct, R. Exh. 5, requires each of its employees to guard the privacy of cus- tomer communications. It also states that employees must pro- tect information that customers entrust to AT&T Mobility. Re- spondent warns employees that improper access to customer ac- counts can lead to discipline, R. Exh. 7. Indeed, it has fired em- ployees for such improper access and prevailed in an arbitration over such a termination, R. Exh. 9. Respondent notes that workplace discussions routinely Sec. 7 rights and whether legitimate justifications outweigh any adverse impact on these employee rights. Category 3 rules are those which are unlawful because the justification for their maintenance does not out- weigh their adverse impact on employee Sec. 7 rights. A rule which is not unlawful to maintain, may be unlawful as applied. However, the Board also stated that the categorization of rules is not part of its new test. However, I would place Respondent’s rule in Category 2 because as reasonably interpreted it would prohibit or interfere the exercise of Sec. 7 rights. 5 CPNI includes such things as the number of lines a customer has, call patterns and usage, services on an account and billing information. 6 SPI includes social security numbers, date of birth and credit card payment information. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 involve CPNI, R. brief at 8. However, the company maintains a “rule of least privilege” that limits access to customer infor- mation only to those who need to access such information to per- form their job. Thus, an employee who is not authorized to ac- cess such information should not be involved in any conversation that included such information. Therefore, the danger of an em- ployee recording CPNI or SPI is materially diminished. Moreo- ver, an employee who is authorized to access CPNI is trained to recognize it. Thus, a rule forbidding the recording of conversa- tions including a discussion of CPNI or SPI should be sufficient to protect Respondent’s pervasive and compelling interest in the privacy of customer information. Indeed, the facts of this case establish Respondent’s business justification for its Privacy of Communications rule is out- weighed by its impact on employees’ Section 7 rights. There is no indication that customer information was discussed at the meeting at the Chevy Chase store that Davis recorded. Neither Collings nor Yu would have been allowed to discuss information with Davis that Davis was not authorized to access. On the other hand, the discussion did involve an issue of employees’ Section 7 rights.7 Furthermore, if the issue of whether Davis or other employees were threatened with discharge required a credibility determination, a recording would most likely have been determi- native. Respondent illegally threatened Davis and other employees I completely agree with Respondent that, in this case, if its rule is legal, Collings statement to Marcus Davis must also be legal. The threat allegation in this case is wholly dependent on the policy’s lawfulness or unlawfulness. Enforcement of a legal rule cannot be a violation of the NLRA, unless, for example, it is enforced disparately. However, since I find that Respondent’s policy infringes on Section 7 rights and is not sustained by valid and relevant busi- ness reasons. Andrew Collings’ statement to Marcus Davis, that he did not want anyone held accountable for not following Re- spondent’s Privacy of Communications policy, is a threat that violates Section 8(a)(1). The statement obviously implies that future violations of the rule may be grounds for discipline and maybe even discharge. The threat was made in response to Da- vis’ violation of Respondent’s rule in the course of his protected activities as union steward, Thor Power Tool Co., 148 NLRB 1379, enfd. 351 F.2d 584 (7th Cir. 1965). CONCLUSIONS OF LAW 1. The business justifications for Respondent’s Privacy of Communications policy do not outweigh its adverse impact on employees’ Section 7 rights and therefore its maintenance and enforcement as written violates Section 8(a)(1) of the Act. 7 In evaluating the legality of Respondent’s rule, consideration must be given to the fact that the rule has been applied to restrict the exercise of Sec. 7 rights, Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004). Davis’ activities in the grievance meeting constituted protected activity, which was not forfeited by flagrant misconduct, Thor Power Tool Co., 148 NLRB 1379 (1964), enfd. 351 F.2d 584 (7th Cir. 1965); Union Fork & Hoe Co., 241 NLRB 907 (1979). 8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended 2. Respondent violated Section 8(a)(1) by impliedly threaten- ing Marcus Davis and others with discipline if they violated the rule again while engaged in protected activity. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended8 ORDER The Respondent, AT&T Mobility, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Maintaining a Privacy of Communications rule, which prohibits employees from recording all conversations they have with coworkers, managers or third parties unless such recordings are approved in advance by the legald, required by the needs of the business, and fully comply with the law and any applicable policy. (b) Impliedly threatening employees with discipline if they do not comply with the Privacy of Communications rule. (c) In any like or related manner restraining or coercing em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectu- ate the policies of the Act. (a) Rescind it Privacy of Communications rule. (b) Notify employees that the Privacy of Communications rule has been rescinded. (c) Within 14 days after service by the Region, post at its Dis- trict of Columbia stores copies of the attached notice marked “Appendix”9 Copies of the notice, on forms provided by the Re- gional Director for Region 5, after being signed by the Respond- ent’s authorized representative, shall be posted by the Respond- ent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its em- ployees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pen- dency of these proceedings, the Respondent has gone out of busi- ness or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 9 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” AT&T MOBILITY, LLC 21 the notice to all current employees and former employees em- ployed by the Respondent at any time since May 19, 2016. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. July 1, 2019 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT maintain or enforce the Privacy of Communica- tions rule included in our Privacy in the Workplace policy pub- lished on our intranet webpage that prohibits employees from re- cording telephone or other conversations they have with their co- workers, managers, or third-parties unless approved by our legal department, required for our business, and in compliance with the law and our policies. WE WILL NOT threaten you with discipline for violating our Privacy of Communications rule. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind our Privacy of Communications rule and ef- fectively notify you of the rescission and that the rule will no longer be enforced. AT&T MOBILITY LLC The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/05-CA-178637 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273‒1940. Paul J. Veneziano, Esq., for the General Counsel. Stephen J. Sferra and Jeffrey A. Seidle, Esqs. (Littler Mendelson, P.C., Cleveland, Ohio), for the Respondent. DECISION STATEMENT OF THE CASE ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Washington, D.C. on February 10, 2017. Marcus Davis filed the charge on June 20, 2016 and the General Counsel issued the complaint on October 14, 2106. The General Counsel alleges that Respondent violated Section 8(a)(1) of the Act by maintaining an overly broad Privacy of Communications rule and by threatening employees with dis- charge if they violate this rule. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a limited liability company which has facilities nation-wide, including retail stores in the District of Columbia, where it annually provides wireless telecommunications devices and services. Respondent derives gross revenues in excess of $100,000 annually and purchases and receives goods and mate- rials in excess of $5000 from outside the District of Columbia. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Communications Workers of America, (of which the Charging Party is a member) is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES Marcus Davis is a retail sales associate at Respondent’s store at Dupont Circle in Washington, D.C. He is also the union stew- ard for CWA Local 2336 for five stores in the Washington, D.C. area. On or about May 19, 2016, Davis attended a meeting in the store manager’s office at Respondent’s Chevy Chase, D.C. store. The purpose of the meeting was for Respondent to present a termination notice to a sales associate who worked at the Chevy Chase store. Davis recorded the meeting, which lasted approxi- mately 20 minutes, on his company owned phone and his per- sonal cell phone without telling management. The Chevy Chase store manager, Richard Belot, suspected that Davis might have recorded the meeting. He called his su- pervisor, Area Sales Manager Andrew Collings, for instructions. Collings consulted with Respondent’s human resources depart- ment. When Collings returned Belot’s call, Davis had returned to the Dupont Circle Store. Collings then called Jason Yu, the manager of that store. He instructed Yu to retrieve the phone, delete the recording and counsel Davis. Yu complied with Col- lings’ instructions. He called Davis into his office, first to delete DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 the recording and a second time to administer the coaching.1 The next day Collings conducted a routine visit to the Dupont Circle store, which he did about once a week. Collings spoke to Davis in the backroom of the store. Collings told Davis that re- cording conversations inside any of Respondent’s stores violated company policy. He then said that Davis should not encourage other employees to record in-store conversations and that “he did not want anyone held accountable for not following policy,” Tr. 65.2 The policy in question is found on Respondent’s intranet site, as part of Respondent’s Privacy in the Workplace Policy, and provides: Privacy of Communications Employees may not record telephone or other conversations they have with their co-workers, managers or third parties un- less such recordings are approved in advance by the Legal De- partment, required by the needs of the business, and fully com- ply with the law and any applicable company policy. G.C. Exh. 2; R. Exh. 1. On May 27, 2016, Collings sent an email to Davis and Local Union Vice President Robin Jones reiterating Respondent’s pol- icy that employees are not permitted to record conversations in- side any of Respondent’s stores, citing the policy set forth above. Respondent’s rule does not address conversations with cus- tomers. The protection of customer information and data is cov- ered by other policies not at issue in this case, Exhs. R‒5, 6, 7, and 8. AT&T Mobility has gone to great lengths to protect cus- tomer data. The legal and business consequences of a breach of customer data for Respondent are very significant, Tr. 70‒100. Analysis Relevant case law The Board has held that an employer violates Section 8(a)(1) when it maintains a work rule that reasonably tends to chill em- ployees in the exercise of their Section 7 rights, Lafayette Park Hotel, 326 NLRB 824, 825 (1998). A rule is unlawful if it ex- plicitly restricts activities protected by Section 7. If this is not true, a violation is established by a showing that 1) employees would reasonably construe the language to prohibit Section 7 ac- tivity; 2) that the rule was promulgated in response to protected activity or 3) that the rule has been applied to restrict the exercise of Section 7 rights, Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004). The Board stated that a rule would not violate the Act merely because it could be read to prohibit pro- tected activity. Several recent decisions have addressed photographing and recording by employees on company property. In Flagstaff Medical Center, 357 NLRB 659 (2011) the Board found that a hospital’s rule prohibiting the use of cameras for recording 1 The Dupont store has public and non-public areas. The non-public areas are in the back of the store and include restrooms, a break area and the store manager’s office. There is a computer in the non-public back of the store where employees can access emails and process products and services. 2 Davis’ account of this conversation is that Collings said, “I’ve fired people for that.” I credit Collings but do not regard the difference in their images of patients and/or hospital equipment, property, or facil- ities, did not violate the Act.3 In Rio All-States Hotel & Casino, 362 NLRB 1690 (2015) the Board found a rule that prohibited the use of any type of audio- visual recording equipment and/or recording device unless au- thorized for business purposes, to be illegal. The Board distin- guished the case from Flagstaff Medical Center by concluding that the Casino’s rules included no indication that they were de- signed to protect privacy or other legitimate interests. In Whole Foods Market, Inc. 363 NLRB 800 (2015) the Board found illegal two company rules. One prohibited the recording of phone calls, images, or company meetings with any recording device unless prior approval is received from management, or all parties to the conversation consent to its recording. Violation of this rule could lead to discipline up to and including discharge. The second rule was similar. Whole Foods stated as its pur- pose the elimination of a chilling effect on the expression of views if one person is concerned that the conversation is being secretly recorded. The Board found both rules illegal. The Board citing Rio All-States Hotel & Casino stated that photog- raphy and audio or video recording in the workplace…are pro- tected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present. The Board distinguished Flagstaff Medical Center by concluding that Whole Foods’ business justification is not nearly as pervasive or compelling as the patient privacy interest in Flag- staff. The Board, relying on Rio All-States Hotel and Whole Foods, reversed the Judge’s finding that an employer’s rule was not vi- olative in T-Mobile, Inc., 363 NLRB 1638 (2016). In T-Mobile, while tacitly acknowledging the employer’s interest in maintain- ing employee privacy, confidential information and promoting open communication, the Board found the rule to be violative because it was not narrowly tailored to promote its legitimate in- terests and would reasonably be construed to restrict employees’ Section 7 rights. Further in both the Whole Foods and T-Mobile decisions, the Board noted that protected conduct may include a number of things including recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions. As the Board has stated, “moreover, our case law is replete with examples, when photographs or recording, often covert was an essential element in vindicating the underlying Section 7 right.” 363 NLRB 800, 802 fn. 8. My experience as an NLRB judge for 20 years confirms that assessment. The law as applied to this case Respondent’s rule prohibiting recordings is illegal In this case I find that Respondent has a pervasive and com- pelling interest in the privacy of customer information versions of the conversation to be significant. Either one communicated to Davis that employees might be disciplined for violation of Respond- ent’s rule. 3 I need not consider whether photography and audio recording can be distinguished with regard to their impact of an employer’s confiden- tiality concerns. AT&T MOBILITY, LLC 23 (Customer Proprietary Network Information (CPNI)4, the con- tent of customer communications and Sensitive Personal Infor- mation (SPI).5 The issue is whether its rule is overly broad when balancing this compelling interest against employees’ Section 7 rights. Respondent’s rule is overbroad and thus illegal. First of all, it is not limited to work time and/or conversations in work areas, or even conversations on Respondent’s premises. Secondly, Re- spondent could protect its substantial interests with a much nar- rower rule, e.g., that makes it a violation of company policy to record in any manner customer information or data. I would note that Respondent prohibits accessing any such data and considers it a breach of its duty if such data is accessed even inadvertently. Employees are trained to understand what constitutes CPNI and SPI, so that they do not even inadvertently access such infor- mation. Respondent does so because, as its brief sets out in great detail, there are potential draconian consequences for unauthor- ized access to CPNI and other customer data, as well as its dis- closure. Since employees are so thoroughly trained not to access CPNI and SPI, it should not be particularly burdensome to promulgate and enforce a rule that prevents the audio and visual recording of such data, just as it prohibits the unauthorized viewing of such data. Respondent notes that workplace discussions routinely in- volve CPNI, R. brief at 8. However, the company maintains a “rule of least privilege” that limits access to customer infor- mation only to those who need to access such information to per- form their job. Thus, an employee who is not authorized to ac- cess such information should not be involved in any conversation that included such information. Therefore, the danger of an em- ployee recording CPNI or SPI is materially diminished. Moreo- ver, an employee who is authorized to access CPNI is trained to recognize it. Thus, a rule forbidding the recording of conversa- tions including a discussion of CPNI or SPI should be sufficient to protect Respondent’s pervasive and compelling interest in the privacy of customer information.6 Indeed, the facts of this case establish the overbreadth of Re- spondent’s rule. There is no indication that customer infor- mation was discussed at the meeting at the Chevy Chase store that Davis recorded. Neither Collings nor Yu would have been allowed to discuss information with Davis that Davis was not authorized to access. On the other hand, the discussion did in- volve an issue of employees’ Section 7 rights.7 Furthermore, if the issue of whether Davis or other employees were threatened with discharge required a credibility determination, a recording 4 CPNI includes such things as the number of lines a customer has, call patterns and usage, services on an account and billing information. 5 SPI includes social security numbers, date of birth and credit card payment information. 6 Without deciding this issue, a rule banning the recording of all con- versations with customers, unless previously authorized, might be legal. Also, protection of SPI strikes me as irrelevant to this case. It is hard to image a situation in which two employees or an employee and a manager would have a conversation which would include discussion of somebody else’s social security number or credit card payment information. It is also hard to image a situation in which an employee would record a con- versation in which one participant divulged his or her birthday. would most likely have been determinative. Even in the absence of the rule, however, the threat to Davis amounted to restraint and coercion in the face of Davis’ pro- tected activity—recording a disciplinary meeting concerning a potential grievance. Respondent illegally threatened Davis and other employees Andrew Collings statement to Marcus Davis, that he did not want anyone held accountable for not following Respondent’s Privacy of Communications policy, is a threat that violates Sec- tion 8(a)(1). The statement obviously implies that future viola- tions of the rule may be grounds for discipline and maybe even discharge. The threat was made in response to Davis’ violation of Respondent’s rule in the course of his protected activities as union steward, Thor Power Tool Co., 148 NLRB 1379, enfd. 351 F.2d 584 (7th Cir. 1965). CONCLUSIONS OF LAW 1. Respondent’s Privacy of Communications policy is over- broad and therefore its maintenance and enforcement as written violates Section 8(a)(1) of the Act. 2. Respondent violated Section 8(a)(1) by impliedly threaten- ing Marcus Davis and others with discipline if they violated the rule again while engaged in protected activity. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended8 ORDER The Respondent, AT&T Mobility, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Maintaining a Privacy of Communications rule, which prohibits employees from recording all conversations they have with coworkers, managers or third parties unless such recordings are approved in advance by the legal department, required by the needs of the business, and fully comply with the law and any applicable policy. (b) Impliedly threatening employees with discipline if they do not comply with the Privacy of Communications rule. (c) In any like or related manner restraining or coercing em- ployees in the exercise of the rights guaranteed them by Section 7 In evaluating the legality of Respondent’s rule, consideration must be given to the fact that the rule has been applied to restrict the exercise of Sec. 7 rights, Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004). Davis’ activities in the grievance meeting constituted protected activity, protection which was not forfeited by flagrant misconduct, Thor Power Tool Co., 148 NLRB 1379, enfd. 351 F.2d 584 (7th Cir. 1965). 8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Or- der shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 24 7 of the Act. 2. Take the following affirmative action necessary to effectu- ate the policies of the Act. (a) Rescind it Privacy of Communications Rule. (b) Notify employees that the Privacy of Communications rule has been rescinded (c) Within 14 days after service by the Region, post at its Dis- trict of Columbia stores copies of the attached notice marked “Appendix I”9 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Re- spondent’s authorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its em- ployees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pen- dency of these proceedings, the Respondent has gone out of busi- ness or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees em- ployed by the Respondent at any time since May 19, 2016. (d) Within 14 days after service by the Region, post at its stores nationwide copies of the attached notice marked “Appen- dix II.”10 Copies of the notice, on forms provided by the Re- gional Director for Region 5, after being signed by the Respond- ent’s authorized representative, shall be posted by the Respond- ent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its em- ployees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pen- dency of these proceedings, the Respondent has gone out of busi- ness or closed the facilities involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees em- ployed by the Respondent at any time since May 19, 2016. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. April 25, 2017 APPENDIX I NOTICE TO EMPLOYEES 9 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT maintain or enforce the Privacy of Communica- tions rule included in our Privacy in the Workplace policy pub- lished on our intranet webpage that prohibits employees from re- cording telephone or other conversation they have with their co- workers, managers, or third-parties unless approved by our legal department, required for our business, and in compliance with the law and our policies. WE WILL NOT threaten you with discipline or discharge for vi- olating our Privacy of Communications rule. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind our Privacy of Communications rule and ef- fectively notify you of the rescission and that the rule will no longer be enforced. AT&T MOBILITY LLC The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/05-CA-178637 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273‒1940. APPENDIX II NOTICE TO EMPLOYEES POSTED BY ORDER OF THE 10 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” IDitri, . AT&T MOBILITY, LLC 25 NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT maintain or enforce the Privacy of Communica- tions rule included in our Privacy in the Workplace policy pub- lished on our intranet webpage that prohibits employees from re- cording telephone or other conversation they have with their co- workers, managers, or third-parties unless approved by our legal department, required for our business, and in compliance with the law and our policies. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind our Privacy of Communications rule and ef- fectively notify you of the rescission and that the rule will no longer be enforced. AT&T MOBILITY LLC The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/05-CA-178637 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273‒1940.