In a follow up to its Whole Foods Market, Inc. decision, which found unlawful an employer policy prohibiting workplace recordings by employees without prior management approval, an NLRB panel majority in Mercedes Benz U.S. International, Inc. denied the General Counsel’s motion for summary judgment on a similar “no recording” policy. According to the majority, Mercedes was entitled to a hearing, which would provide an opportunity to present evidence regarding its business justifications for the policy, and about whether the policy was communicated or applied in a manner that clearly conveyed an intent to permit protected activity.

Member Pearce dissented, arguing that the employer’s policy which prohibited the use of cameras and video recording devices in the plant without prior authorization, was facially overbroad and did not provide any exceptions for protected concerted activity. As such, according to Member Pearce, the policy tends to impermissibly chill employee expression and therefore was unlawful regardless of the employer’s intent in adopting and implementing the policy and regardless of whether employees actually interpreted the policy as restricting their Section 7 rights.

It is positions like this one from Member Pearce that dominated the Obama Board when it had its full complement of members and have employers anxiously awaiting Senate confirmation of Marvin Kaplan and William Emanuel, who are expected to be nominated by President Trump to fill the two current Board vacancies. The Mercedes Benz decision is refreshing in that it suggests a possible loosening of the current standard for evaluating the lawfulness of employer handbook policies. At present, the standard is whether “employees would reasonably construe the [policy] language to prohibit Section 7 activity.” Too often in recent years, this standard, in practice, has really looked more like whether there is any conceivable possibility that employees would construe the language to prohibit Section 7 activity. Hopefully, once a Republican majority Board is in place, we will start to see a relaxing of the Board’s standard for reviewing employer policies.