Cell phones, iPods, radios, blue tooth earpieces:  common electronic gadgets in our world today.  Labor professionals frequently must decide how to appropriately regulate the use of these devices in the workplace.  This was the problem that confronted the employer in Warren Unilube, Inc., 358 N.L.R.B. No. 92 (July 31, 2012). 

The employer operated a petroleum products plant.  To ensure that employees, some of whom operated machinery like forklifts, could communicate with one another, the employer adopted a rule that completely prohibited the use of various electronic devices in the workplace.  The policy threatened discipline of the employees who violated its terms.  The employer announced this policy, however, only 11 days after a union won an election seeking to represent the hourly employees subject to the policy.  Before adopting the rule, the employer did not seek to bargain with the union regarding it.

The NLRB found that the employer acted unlawfully.  The employer never previously maintained a "no radios" rule, thus making it a significant change in the terms and conditions of employment for the employees.  The cell phone rule was also a significant change despite the fact that, for about three years prior to issuing the new rule, the employer had maintained a rule that prohibited the use of cell phones while operating equipment.  The NLRB reasoned that the new rule contained an emphasis on disciplinary action for violating it that the prior rule lacked.  It also found that the old rule was not as strictly enforced and comprehensive as the new rule.

The NLRB rejected two arguments from the employer.  First, it rejected the employer’s argument that the union had not demanded bargaining at the time the employer implemented the rule.  A demand to bargain was not necessary given the union’s election win just a few days earlier.  Second, it rejected the employer’s argument that OSHA’s "general duty clause" permitted the employer to bypass bargaining with the union.  The general duty clause did not mandate the changes the employer adopted.  Moreover, there were a number of "preimplementation issues" — like the nature of devices banned and the locations in the facility where the ban would apply — that were suitable for bargaining.

Member Hayes (R) concurred in the NLRB’s decision.  His reasoning, however, was somewhat less sweeping.  For him, the key issue was the focus on discipline connected with violating the rule.  He also pointed out that, in some cases, the immediate need to comply with the general duty clause may excuse an employer from bargaining with the union over a new rule.  The employer simply failed to prove that such circumstances existed in this case.

Labor professionals in unionized workplaces should take note of the NLRB’s decision.  It offers a good example of how the NLRB analyzes work rule changes in connection with the employer’s obligation to bargain.