LA SPECIALTY PRODUCE COMPANY

National Labor Relations Board - Board Decisions

Oct 10, 2019

368 NLRB No. 93 (N.L.R.B. 2019)

368 NLRB No. 93
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.
LA Specialty Produce Company and Teamsters Local
70, International Brotherhood of Teamsters.
Case 32–CA–207919
October 10, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN,
KAPLAN, AND EMANUEL
On June 28, 2018, Administrative Law Judge Amita
Baman Tracy issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent filed
a reply brief.
The Board has considered the 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
extent consistent with this Decision and Order.
I. BACKGROUND
The Respondent is a wholesale distributor of produce
and other fine and specialty foods. Since at least 1998, the
Respondent has maintained the LA & SF Specialty Em-
ployee Manual (the Manual), which contains the two rules
at issue in this case, the Respondent’s Confidentiality and
Non-Disclosure rule (Confidentiality rule) and the Media
Contact rule. The Confidentiality rule states, in its en-
tirety, as follows:
Every employee is responsible for protecting any and
all information that is used, acquired or added to re-
garding matters that are confidential and proprie-
tary of [Respondent] including but not limited to cli-
ent/vendor lists, client/vendor information, accounting
records, work product, production processes, business
operations, computer software, computer technology,
marketing and development operations, to name a few.
Confidential information will also include information
provided by a third party and governed by a non-disclo-
sure agreement between [Respondent] and the third
party. Access to confidential information should be dis-
closed on a “need-to-know” basis and must be author-
ized by management. Any breach to this policy will not
be tolerated and will be subject to disciplinary and legal
action.
(Emphasis added.) The complaint alleges that only the lan-
guage in bold violates the Act.
The Media Contact rule states: “Employees approached
for interview and/or comments by the news media, cannot
provide them with any information. Our President,
Michael Glick, is the only person authorized and desig-
nated to comment on Company policies or any event that
may affect our organization.” The complaint alleges that
the rule in its entirety violates the Act.
II. ANALYSIS
A. Legal Standard
Section 7 of the Act provides that employees have the
right to “self-organization, to form, join, or assist labor or-
ganizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection[.]” These rights are vital to
the achievement of the national labor policy that Congress
has established, but they are not absolute. More than 70
years ago, the Supreme Court held that the law requires
“an adjustment between the undisputed right of self-or-
ganization assured to employees . . . and the equally un-
disputed right of employers to maintain discipline in their
establishments. Like so many others, these rights are not
unlimited in the sense that they can be exercised without
regard to any duty which the existence of rights in others
may place upon employer or employee. Opportunity 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).
Consistent with this framework, the Board recognized
in Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004), that employers have legitimate reasons for adopt-
ing workplace rules and policies and that, in determining
whether a challenged rule is unlawful, the Board must give
the rule a reasonable reading and refrain from reading par-
ticular phrases in isolation, “and it must not presume im-
proper interference with employee rights.” Id. at 646. The
Board also stressed that where, as in this case, “the rule
does not refer to Section 7 activity, [the Board would] not
conclude that a reasonable employee would read the rule
to apply to such activity simply because the rule could be
interpreted that way.” Id. at 647 (emphasis in original).
As thoroughly recounted in Boeing Co., 365 NLRB No.
154, slip op. at 11–14 (2017), however, the Board subse-
quently lost its way. In case after case, it invalidated com-
monsense rules and requirements that most people would
reasonably expect every employer to maintain. In doing
so, the Board viewed challenged rules not from the stand-
point of reasonable employees, but from that of traditional
labor lawyers who have devoted their professional lives to
interpreting and applying the NLRA. And it outlawed
rules and policies based on its judgment that such rules
could have been written more narrowly to eliminate po-
tential interpretations that might conflict with the exercise
of Section 7 rights—interpretations that might occur to an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
experienced labor lawyer but that would not cross a rea-
sonable employee’s mind.
Boeing recommitted the Board to the balanced approach
required by Republic Aviation in two important ways.
First, Boeing repudiated the quest for “linguistic preci-
sion” that had prevailed under the misapplied “reasonably
construe” prong of the Lutheran Heritage standard, under
which the Board demanded a “perfection that literally
[was] the enemy of the good.” 365 NLRB No. 154, slip
op. at 2. Instead, Boeing requires the Board to determine
whether a facially neutral rule, reasonably interpreted,
would potentially interfere with the exercise of NLRA
rights. Id., slip op. at 3. Here, we agree with Member
Kaplan’s observation in Boeing that the outcome of this
inquiry “should be determined by reference to the perspec-
tive of an objectively reasonable employee who is ‘aware
of his legal rights but who also interprets work rules as
they apply to the everydayness of his job. The reasonable
employee does not view every employer policy through
the prism of the NLRA.’” Id., slip op. at 3 fn. 14 (quoting
T-Mobile USA, Inc. v. NLRB, 865 F.3d 265, 271 (5th Cir.
2017)). Accordingly, a challenged rule may not be found
unlawful merely because it could be interpreted, under
some hypothetical scenario, as potentially limiting some
type of Section 7 activity, or because the employer failed
to eliminate all ambiguities from the rule, an all-but-im-
possible task. Id., slip op. at 9.1
Second, even if a facially neutral rule, when reasonably
interpreted, would potentially interfere with the exercise
of NLRA rights, Boeing also requires the Board to “eval-
uate . . . (i) the nature and extent of the potential impact on
NLRA rights, and (ii) legitimate justifications associated
with the rule.” Id., slip op. at 3 (emphasis in original).
Having performed this two-step evaluation, the Board will
find that “the rule’s maintenance . . . violate[s] Section
8(a)(1) if . . . the justifications are outweighed by the ad-
verse impact on rights protected by Section 7.” Id., slip
op. at 16.
In order to provide the certainty and predictability that
the Supreme Court in First National Maintenance

1 As the Board in Boeing properly recognized, “[t]he Supreme Court
has stressed the need to provide ‘certainty beforehand’” so that employ-
ers “can ‘reach decisions without fear of later evaluations labeling . . .
conduct an unfair labor practice’ . . . .” Id., slip op. at 14 fn. 74 (quoting
First National Maintenance Corp. v. NLRB, 452 U.S. 666, 678–679
(1981)). And the Board in Boeing also recognized that its “rules” juris-
prudence “is an area where the Board has a special responsibility to give
parties certainty and clarity.” Id., slip op. at 14.
2 Going forward, we prefer to designate the two subdivisions of Cat-
egory 1 as 1(a) and 1(b).
3 The word potentially as used in Boeing must not be misunderstood.
It does not turn the first step of the Boeing analysis into an inquiry into
whether the rule at issue could be interpreted to prohibit Sec. 7 activity.
required, the Board will, over time, sort employer rules
into three categories:
Category 1 will include rules that the Board designates
as lawful to maintain, either because (i) the rule, when
reasonably interpreted, does not prohibit or interfere
with the exercise of NLRA rights; or (ii) the potential
adverse impact on protected rights is outweighed by jus-
tifications associated with the rule. . . .
Category 2 will include rules that warrant individualized
scrutiny in each case as to whether the rule would pro-
hibit or interfere with NLRA rights, and if so, whether
any adverse impact on NLRA-protected conduct is out-
weighed by legitimate justifications.
Category 3 will include rules that the Board will desig-
nate as unlawful to maintain because they would prohibit
or limit NLRA-protected conduct, and the adverse im-
pact on NLRA rights is not outweighed by justifications
associated with the rule.
Id., slip op. at 3–4 (emphasis in original). However, these
categories “will represent a classification of results from the
Board’s application of the new test. The categories are not
part of the test itself.” Id., slip op. at 4 (emphasis in original).
As indicated, the classification of types of rules will re-
sult from application of the Boeing test over a period of
time.2 However, we provide the following points of clar-
ification for the guidance of parties in future litigation.
First, it is the General Counsel’s initial burden in all
cases to prove that a facially neutral rule would in context
be interpreted by a reasonable employee, as defined
above, to potentially interfere with the exercise of Section
7 rights.3 If that burden is not met, then there is no need
for the Board to take the next step in Boeing of addressing
any general or specific legitimate interests justifying the
rule. The rule is lawful and fits within Boeing Category
1(a). There will be no need for further case-by-case liti-
gation of the legality of a rule so classified. As discussed
below, we find the Confidentiality and Media Contact
rules at issue in this case are lawful and belong in Category
1(a).
As Boeing itself makes clear, a challenged rule may not be found unlaw-
ful merely because it could be interpreted, under some hypothetical sce-
nario, as potentially limiting some type of Sec. 7 activity. Id., slip op. at
9; see also Lutheran Heritage, 343 NLRB at 647 (“Where . . . the rule
does not refer to Section 7 activity, we will not conclude that a reasonable
employee would read the rule to apply to such activity simply because
the rule could be interpreted that way.” (emphasis in original)). Rather,
the word potentially reflects the commonsense understanding that even
when a rule would be reasonably interpreted to prohibit Sec. 7 activity,
it may not actually interfere with such activity. Employees may be una-
ware of the rule or may choose to disregard it.
LA SPECIALTY PRODUCE CO. 3
Second, if the General Counsel meets the initial burden
of proving that a reasonable employee would interpret a
rule to potentially interfere with the exercise of Section 7
rights, the Boeing analysis will require a balancing of that
potential interference against the legitimate justifications
associated with the rule. In many instances, we anticipate
that it will be possible to strike a general balance of com-
peting employee rights and employer interests for certain
types of rules, thus eliminating the need for further case-
by-case balancing. When the balance favors the general
employer interests over the potential interference with the
exercise of Section 7 rights, the rule at issue will be lawful
and will fit within Boeing Category 1(b). When the po-
tential for interference with the exercise of Section 7 rights
outweighs any possible employer justification, the rule at
issue will be unlawful and will fit within Boeing Category
3.4 In this respect, the practice of setting a legal standard
based on the one-time application of the Boeing balancing
test is consistent with other standards set by a similar one-
time balancing of employee rights and employer interests
in precedent that Boeing did not disturb.5
Third, in some instances, it will not be possible to draw
any broad conclusions about the legality of a particular
rule because the context of the rule and the competing
rights and interests involved are specific to that rule and
that employer. These rules will fit in Boeing Category 2.
With this clarification, we now turn to an analysis of the
two rules at issue.
B. Confidentiality Rule
The Respondent’s Confidentiality rule, in relevant part,
requires employees to preserve the confidentiality of in-
formation “regarding matters that are confidential and
proprietary of [Respondent] including but not limited to
client/vendor lists.” Applying Boeing, the judge found the
maintenance of this rule unlawful. In her view, the rule
interferes with the exercise of Section 7 rights, and the in-
terference outweighs the Respondent’s business justifica-
tion for the rule. The Respondent’s client and vendor lists
contain sensitive information about pricing and discounts,
and the judge acknowledged that the Respondent has a

4 E.g., Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10
(2019). We note that the Boeing opinion misleadingly stated that “[a]n
example of a Category 3 rule would be a rule that prohibits employees
from discussing wages or benefits with one another.” 365 NLRB No.
54, slip op. at 4. On the contrary, a rule that expressly prohibits employ-
ees from discussing wages is not facially neutral and would be found
unlawful under longstanding precedent predating Boeing and Lutheran
Heritage. See, e.g., Triana Industries, Inc., 245 NLRB 1258 (1979);
Coosa Valley Convalescent Center, 224 NLRB 1288 (1976). However,
a facially neutral rule that an objectively reasonable employee would in-
terpret as prohibiting discussion of wages with co-workers would be un-
lawful and fit within Boeing Category 3 because the potential impact on
the exercise of a core Sec. 7 right outweighs any possible employer
substantial justification in preventing this information
from being disclosed to its competitors. The judge found,
however, that as written, the Confidentiality rule is not tar-
geted at protecting this sensitive information, and it pro-
hibits employees from sharing even customer and vendor
names with third parties, such as a labor organization. The
judge also noted that employees have a Section 7 right to
appeal to an employer’s customers in a labor dispute. In
conclusion, she found that the Confidentiality rule in-
fringes on the exercise of Section 7 rights to an extent that
“tips the scale in favor of employee rights.” For the fol-
lowing reasons, we reverse.6
Preliminarily, we agree that employees have a Section
7 right to concertedly appeal to third parties, including
their employer’s customers, for support in a labor dispute.
See Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978); Trin-
ity Protection Services, 357 NLRB 1382, 1383 (2011);
Kinder-Care Learning Centers, 299 NLRB 1171, 1171–
1172 (1990); Allied Aviation Service Co. of New Jersey,
248 NLRB 229, 230 (1980), enfd. mem. 636 F.2d 1210
(3d Cir. 1980). But the judge did not explain, and we are
unable to perceive, how the language at issue would be
reasonably read to interfere with that right. The Confiden-
tiality rule requires employees to protect the confidential-
ity of the Respondent’s client and vendor lists. It says
nothing about talking to the Respondent’s clients or ven-
dors.
In addition, “employees may be lawfully disciplined or
discharged for using for organizational purposes infor-
mation improperly obtained from their employer’s private
or confidential records.” Macy’s, Inc., 365 NLRB No.
116, slip op. at 4 (2017). This is so because the Act does
not protect employees who divulge information that their
employer lawfully may conceal. Id. (citing International
Business Machines Corp., 265 NLRB 638 (1982) (em-
ployer lawfully discharged employee who knowingly dis-
tributed salary information illicitly obtained from confi-
dential wage table compiled by employer for its own in-
ternal use)).
We find that the Confidentiality rule, as interpreted by
an objectively reasonable employee, does not prohibit or
interest, whether general for all employers or specific to the employer
involved, in maintaining such a rule.
5 E.g., Peyton Packing Co., 49 NLRB 828 (1943) (no-solicitation
rules), enfd. 142 F.2d 1009 (5th Cir. 1944), cert. denied 323 U.S. 730
(1944); Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962) (no-distribu-
tion rules); Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
6 On June 27, 2018, the General Counsel filed a motion to withdraw
the complaint allegation that the Confidentiality rule is unlawful. The
motion was filed after the parties had litigated the issue and one day be-
fore the judge issued her decision in this case. In these circumstances,
we find that it would effectuate the policies of the Act to rule on this
issue. Accordingly, the motion is denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
interfere with the exercise of Section 7 rights. Contrary to
the judge’s finding, the rule does not prohibit employees
from disclosing the names of the Respondent’s customers
and vendors to third parties, such as labor organizations.
The disputed portion of the rule only applies to disclosure
of the Respondent’s “client/vendor lists.” The other cate-
gories of information prohibited from disclosure—“ac-
counting records, work product, production processes,
business operations, computer software, computer tech-
nology, marketing and development operations, to name a
few”—further confirm that the portion of the Confidenti-
ality rule at issue only applies to the Respondent’s own
nonpublic, proprietary records.7
Having found that an objectively reasonable employee
would not interpret the Respondent’s Confidentiality rule
as potentially interfering with the exercise of Section 7
rights, no consideration of the asserted business justifica-
tions offered for the rule is necessary in order to find it
lawful under Boeing.8 Further, we now generally catego-
rize rules that prohibit the disclosure of confidential and
proprietary customer and vendor lists as Category 1(a)
rules. Rules seeking to protect such lists target the protec-
tion of business information a company has developed
over time. These rules do not target information central to
the exercise of Section 7 rights, such as employee salary
or wage information. Nor do they prohibit employees
from appealing to customers or vendors for support in a
labor dispute, or from disclosing the names and locations
of customers or vendors derived from sources other than
the employer’s own confidential records.9
C. Media Contact Rule
The Media Contact rule provides that “[e]mployees ap-
proached for interview and/or comments by the news me-
dia, cannot provide them with any information. Our Pres-
ident, Michael Glick, is the only person authorized and
designated to comment on Company policies or any event
that may affect our organization.” For reasons stated

7 In finding the rule unlawful, the judge stated that the rule was not
clear about what employees could share because “the record lacks any
evidence as to whether it is well-known to employees what customer and
vendor lists are as defined by Respondent” and because the Respondent’s
director of human resources and customer service, Wesley Wong, testi-
fied inconsistently regarding whether customer names and locations are
confidential. We disagree with the judge’s rationale. The issue here
concerns the lawfulness of the Confidentiality rule on its face, and Boe-
ing requires that the rule be reasonably interpreted. In other words,
whether the rule potentially interferes with the exercise of Sec. 7 rights
is determined under an objective standard. Evidence, or the lack of evi-
dence, concerning how Wong or the Respondent’s employees interpret
the rule does not control that objective inquiry.
8 We do not mean to suggest that the justification asserted for a rule
of this kind lacks merit. It requires no great act of imagination to picture
the grave harm that disclosure of the Respondent’s customer and vendor
lists could inflict on its business. However, absent proof that employees
below, we reverse the judge and find that the Media Con-
tact rule does not violate the Act.
Employees may engage in protected concerted activity
“when they seek to . . . improve their lot as employees
through channels outside the employee-employer relation-
ship.” Eastex, 437 U.S. at 565. Thus, Section 7 generally
protects employees when they speak with the media about
working conditions, labor disputes, or other terms and
conditions of employment. See, e.g., Valley Hospital
Medical Center, 351 NLRB 1250 (2007), enfd. mem. sub
nom. Nevada Service Employees Union, Local 1107,
SEIU v. NLRB, 358 Fed. Appx. 783 (9th Cir. 2009); Mas-
Tec Advanced Technologies, 357 NLRB 103 (2011), enfd.
sub nom. DirecTV, Inc. v. NLRB, 837 F.3d 25 (D.C. Cir.
2016), cert. denied 138 S.Ct. 92 (2017); see also Kinder-
Care Learning Centers, 299 NLRB at 1171 (finding un-
lawful a rule prohibiting employees from discussing terms
and conditions of employment with third parties). How-
ever, the Media Contact rule at issue here is not facially
unlawful unless it would reasonably be interpreted as in-
fringing on the Section 7 right to communicate employ-
ees’ personal opinions about wages, hours, or working
conditions to the media. We find otherwise. When rea-
sonably interpreted as required by Boeing, the Media Con-
tact rule provides only that when employees are ap-
proached by the news media for comment, they cannot
speak on the Respondent’s behalf. Since employees have
no right under the National Labor Relations Act to speak
on their employer’s behalf, the Media Contact rule does
not potentially interfere with the exercise of NLRA rights.
The Media Contact rule speaks only to situations in
which employees are approached by the news media, and
it only prohibits employees from speaking on the Re-
spondent’s behalf.10 We recognize that the first sentence
of the rule, standing alone, might suggest that employees
may never speak to the news media—on behalf of the Re-
spondent or themselves—when approached for comment.
would reasonably interpret the rule as potentially interfering with the ex-
ercise of any Sec. 7 right, there is no need to consider and weigh any
justifications for the rule.
9 Union Trustee Richard Fierro testified that the Union is currently
organizing the employees at the Respondent’s facility, and for organizing
purposes, the Union will collect the names of an employer’s clients and
vendors so it can make these third parties aware of the working condi-
tions of the employer’s employees. But there is no basis for finding that
employees supporting the Union’s campaign would reasonably believe
that the Union could not obtain this information from employees without
disclosure of the client and vendor lists.
10 Unsurprisingly, the Respondent’s director of human resources and
customer service testified that the purpose of the Media Contact rule is
to authorize and designate Glick alone to speak on behalf of the Com-
pany so as to prevent “false information” from going out. We do not
rely, however, on this testimony to determine how employees would rea-
sonably interpret the rule. We rely on the language of the rule itself.
LA SPECIALTY PRODUCE CO. 5
But the Board “must refrain from reading particular
phrases in isolation,” Lutheran Heritage, 343 NLRB at
646, and, in any event, the rule in its entirety is at issue.
We find, contrary to the judge, that an objectively reason-
able employee would understand that the second sentence
qualifies the first sentence by explaining that only Glick is
authorized and designated to comment on company mat-
ters. The phrase “authorized and designated” is key. It
signifies that Glick is the Respondent’s spokesperson, i.e.,
the only person authorized to comment about company
matters on the Respondent’s behalf. Thus, read as a whole
and from the perspective of a reasonable employee, the
rule provides that because only Glick is authorized and
designated to comment on company matters, employees
approached for comment by the news media cannot speak
on the Respondent’s behalf.
The General Counsel misreads the Media Contact rule
to prohibit employees from ever speaking to the media,
reading the first sentence to say that employees may never
speak to the news media when approached for comment,
and reading the second sentence to say that nobody but
Glick may comment to the news media, meaning that em-
ployees may never do so. Again, however, to read the rule
reasonably is to read it as a whole, and reading both sen-
tences together, the second sentence merely explains the
prohibition contained in the first sentence against speak-
ing when approached for comment by the news media.
The second sentence does not expand the prohibition in
the first sentence from “when approached” to “at all
times.” To read the second sentence of the rule that way
renders the first sentence entirely superfluous. If the Re-
spondent meant to prohibit its employees from ever speak-
ing to the news media, it would not have begun by limiting
employees from speaking to the news media only when
approached.11 And again, read together with the second
sentence designating Glick as the only person authorized

11 We recognize that the rule might have been better written if the
order of the two sentences were reversed, and it would be better still if
the rule included a statement that employees remain free to express their
personal opinions to the media as long as it is clear that they are not
speaking on behalf of the company. However, as previously stated, Boe-
ing properly rejected “linguistic perfection” as a standard for determin-
ing whether the language of a facially neutral employer rule or policy
would be reasonably interpreted by an objective employee to interfere
with Sec. 7 rights.
As with the rule requiring employees to maintain the confidentiality
of client and vendor lists, we do not mean to suggest that the justifica-
tions asserted for rules that prohibit employees from speaking to the me-
dia on behalf of their employer lack merit. To the contrary, employers
have a legitimate and indeed compelling interest in designating who may
speak to the news media on their behalf in order to control messaging
and thus mitigate risks of economic and reputational harm. However,
absent proof that employees would reasonably interpret the Media Con-
tact rule as potentially interfering with the exercise of any Sec. 7 right,
there is no need to consider and weigh any justifications for the rule.
to speak on company matters, a reasonable employee
would understand that he or she is only precluded from
speaking on behalf of the Respondent when approached
for comment.
Based on the foregoing application of the Boeing test,
we find that the Media Contact rule at issue is lawful. Fur-
ther, we designate rules that prohibit employees from
speaking to the media on behalf of their employer as Boe-
ing Category 1(a) rules. Since there is no Section 7 right
to speak to the media on behalf of the employer—i.e., to
act as the company spokesperson—such rules, when rea-
sonably interpreted, would not potentially interfere with
the exercise of Section 7 rights.
III. RESPONSE TO DISSENT
Our dissenting colleague disagrees with our analysis for
several reasons, most of which were previously articulated
in her dissent in Boeing. She questions our allocation of
the burden of proof in rules-maintenance cases, and she
rejects the categorization of work rules and policies that
Boeing adopts. The dissent then disputes our evaluation
of the specific rules at issue in this case. We disagree with
our colleague’s views for the reasons stated in Boeing and
those that follow.12
First, there is no merit to the dissent’s criticism of our
allocation of the burden of proof in cases of this type. As
stated above, it is the General Counsel’s burden to prove
“that a facially neutral rule would in context be interpreted
by a reasonable employee . . . to potentially interfere with
the exercise of Section 7 rights.” This follows inescapably
from the undisputed principle that the General Counsel al-
ways bears the burden to prove that the Act has been vio-
lated,13 and from Boeing itself, which emphasized that, ab-
sent evidence that a disputed rule, reasonably interpreted,
would prohibit or interfere with the exercise of NLRA
rights, “the Board’s inquiry into maintenance of the rule
12 In a brief aside, our colleague presents a variation on her oft-re-
peated charge that we wrongfully modify the law without public partici-
pation. We again reject her argument, which is particularly inapposite
since this matter was litigated after Boeing was decided, and we are
merely clarifying that decision. Moreover, the parties and the judge ap-
plied Boeing, and any interested party who wished to do so could have
filed a motion requesting the Board to accept its amicus brief regarding
how Boeing should be applied to the rules at issue here. Moreover, even
accepting our colleague’s skepticism that our decision represents a “clar-
ification” of Boeing, nothing in the Act, the Board's Rules, the Adminis-
trative Procedure Act, or procedural due process principles requires the
Board to invite amicus briefing before reconsidering precedent.
13 See, e.g., Centex Independent Electrical Contractors Assn., 344
NLRB 1393, 1402–1403 (2005) (“[E]very unfair labor practice hearing
begins with the presumption that the respondent has obeyed the law, and
the General Counsel bears the burden of proving violative conduct by a
preponderance of the evidence.”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
comes to an end.”14 The dissent finds this standard “per-
plexing” and the meaning of would “elusive.” We see
nothing elusive in the meaning of this word. Indeed, the
Board used the same word when formulating the General
Counsel’s burden of proof under the Lutheran Heritage
approach our colleague claims to espouse.15 Nor, contrary
to the dissent, is there anything unclear about who it is that
performs the balancing of employer interests and em-
ployee rights that Boeing requires. As Boeing empha-
sized, “the Board will conduct this evaluation, consistent
with [its] ‘duty to strike the proper balance between . . .
asserted business justifications and the invasion of em-
ployee rights in light of the Act and its policy,’ focusing
on the perspective of employees, which is consistent with
Section 8(a)(1).” 365 NLRB No. 154, slip op. at 3 (quot-
ing NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33–
34 (1967) (emphasis in Boeing)). There is nothing new
about this principle, which relies on Supreme Court prec-
edent.16
Second, there is also nothing new about categorizing
workplace rules based on a one-time balancing of rights
and interests. As observed in Boeing, the Board has pre-
viously engaged in a similar exercise with respect to rules
restricting solicitation, distribution of literature, and off-
duty employee access. 365 NLRB No. 154, slip op. at 8.
As a result, employers and employees have clear guidance
regarding their respective rights and obligations. We seek,
where possible, to provide the same clear guidance for
other types of rules common to many American work-
places. Our colleague prefers to examine each rule afresh
to determine whether it could have been “tailored” more
narrowly, an exercise in unpredictability. We believe that
employees and employers deserve better—and more

14 See Boeing, 365 NLRB No. 154, slip op. at 16.
15 See Lutheran Heritage, 343 NLRB at 647 (holding that mainte-
nance of a work rule is unlawful if, among other things, “employees
would reasonably construe the language to prohibit Section 7 activity”)
(emphasis added). But as we will show, while our colleague advocates
adherence to Lutheran Heritage, her opinion recapitulates the erstwhile
Board majority’s deviation from that standard in practice.
16 “It is the primary responsibility of the Board . . . ‘to strike the proper
balance between the asserted business justifications and the invasion of
employee rights in light of the Act and its policy.’” NLRB v. Fleetwood
Trailer Co., 389 U.S. 375, 378 (1967) (quoting NLRB v. Great Dane
Trailers, 388 U.S. at 33–34). The Board has long applied the same prin-
ciple. See Caesar’s Palace, 336 NLRB 271, 272 fn. 6 (2001) (“It is the
responsibility of the Board to strike the proper balance between the as-
serted business justifications and the invasion of employee rights in light
of the Act and its policy.”).
17 See First National Maintenance Corp. v. NLRB, 452 U.S. at 678–
679; see also fn. 1, above. Actually, our colleague’s approach produces
its own kind of predictability, since the question “Can it be tailored more
narrowly?” will almost always be answered “Yes.” See Boeing, 365
NLRB No. 154, slip op. at 9 (“[I]t is likely that one can ‘reasonably con-
strue’ even the most carefully crafted rules in a manner that prohibits
some hypothetical type of Section 7 activity.”). But this is a bad kind of
importantly, so does the Supreme Court.17 We recognize,
however, that some rules “warrant individualized scru-
tiny,” and “in some instances, it will not be possible to
draw any broad conclusions about the legality of a partic-
ular rule because the context of the rule and the competing
rights and interests involved are specific to that rule and
that employer.”
That said, we are puzzled by our colleague’s objection
to our classification in Boeing Category 1(a) of “rules that
prohibit the disclosure of confidential and proprietary cus-
tomer and vendor lists” and “rules that prohibit employees
from speaking to the media on behalf of their employer.”
The dissent agrees that “there is no dispute that” an em-
ployer has the right to maintain such prohibitions (empha-
sis added).18 Our decision today goes no further than that.
We have not given all client-and-vendor confidentiality
rules or all media contact rules a categorical stamp of ap-
proval. No fair reader of our decision could come away
with that mistaken impression.
Finally, the dissent contends that the specific rules at is-
sue in this case should be found unlawful, but her analysis
is flawed in several respects. Our colleague concedes that
the Confidentiality Rule is lawful insofar as it relates to
the Respondent’s own confidential client-and-vendor lists.
But she would find it unlawful all the same on the premise
that “the phrase ‘client/vendor lists’ might well include
any written list, or an oral list, or even two or more
names.” This reasoning contradicts both Boeing and Lu-
theran Heritage because it focuses on whether an em-
ployee “might well” interpret the rule to prohibit Section
7 activity, rather than whether an employee would reason-
ably interpret the rule to do so.19 Moreover, the dissent
reaches this result by reading “client/vendor lists” in
predictability, the sort that tempts employers to throw up their hands in
despair. See id., slip op. at 10 (“[W]hen parties are held to a standard
that cannot be attained, the natural and predictable response is that they
will give up trying . . . .”).
18 Specifically, the dissent states that “[t]here is no dispute that the
Respondent may lawfully prevent employees from speaking on its behalf
without authorization – with a narrowly tailored rule” and that “[t]here
is no dispute that the Respondent’s computerized and annotated lists are
the Respondent’s property and are properly subject to a narrowly tailored
confidentiality rule.” While the dissent insists that such rules must be
“narrowly tailored” to be lawful, that position is flawed for the reasons
explained in Boeing and herein.
19 Boeing, 365 NLRB No. 154, slip op. at 16; Lutheran Heritage, 343
NLRB at 647. Of course, to ask whether an employee “might well” in-
terpret a rule to prohibit Sec. 7 activity is to ask whether an employee
could interpret the rule to do so. The dissent avoids framing her analysis
in these terms because this would make it too obvious that she does not,
in fact, adhere to Lutheran Heritage, her protestations to the contrary
notwithstanding. See Lutheran Heritage, 343 NLRB at 647 (“Where . .
. the rule does not refer to Section 7 activity, we will not conclude that a
reasonable employee would read the rule to apply to such activity simply
because the rule could be interpreted that way” (emphasis in original).).
LA SPECIALTY PRODUCE CO. 7
isolation. She fails to give any weight to the context in
which that term appears. As explained above, our inter-
pretation of the disputed provision as limited to the em-
ployer’s own client/vendor lists is supported by the fact
that the other categories of information covered by the
rule—“accounting records, work product, production pro-
cesses, business operations, computer software, computer
technology, marketing and development operations”—
also refer to information maintained in the Respondent’s
own confidential and proprietary business records. Again,
the dissent’s failure to take this context into consideration
is contrary to both Boeing and the Lutheran Heritage
standard the dissent purports to apply.20
Our colleague’s analysis of the Media Contact rule fails
as well, and for similar reasons. Once again, the dissent
contradicts the principles stated in both Boeing and Lu-
theran Heritage by reading each sentence in isolation, dis-
regarding the fact that the rule’s second sentence—refer-
ring to the Respondent’s president as “the only person au-
thorized and designated to comment” on Company poli-
cies—illuminates the rule as a whole. Consequently, she
amplifies isolated ambiguities while ignoring the overall
import of the rule from the perspective of a reasonable em-
ployee. Indeed, she goes even further. The dissent ridi-
cules our reading of the Media Contact rule as limited to
situations in which employees are approached by the news
media as “illogical[]” and one that “cannot be taken seri-
ously”—even though this is precisely what the Media
Contact rule states.21 Reasonable employees do not scour
the employee handbook searching for ambiguities that
suggest interference with their Section 7 rights, and they
certainly do not ignore what a rule actually says. Our col-
league also errs insofar as she bases her violation finding
on her view that “[i]t would have been easy for the Re-
spondent to draft the rule” more narrowly. Once again,
both Boeing and Lutheran Heritage preclude this reason-
ing.22

20 Boeing, 365 NLRB No. 154, slip op. at 15; Lutheran Heritage, 343
NLRB at 646 (“In determining whether a challenged rule is unlawful, the
Board must . . . give the rule a reasonable reading. It must refrain from
reading particular phrases in isolation, and it must not presume improper
interference with employee rights.”).
21 “Employees approached for interview and/or comments by the
news media, cannot provide them with any information. Our President,
Michael Glick, is the only person authorized and designated to comment
on Company policies or any event that may affect our organization.”
(Emphasis added.)
22 Boeing, 365 NLRB No. 154, slip op. at 2 (rejecting quest for “lin-
guistic precision” that had prevailed under the misapplied “reasonably
construe” prong of the Lutheran Heritage standard, under which the
Board demanded a “perfection that literally [was] the enemy of the
good”); Lutheran Heritage, 343 NLRB at 647 (“Where . . . the rule does
not refer to Section 7 activity, we will not conclude that a reasonable
Ultimately, our disagreement with the dissent flows
from the fact that we and she hold incompatible views of
what constitutes a reasonable employee. For our col-
league, the reasonable employee is akin to an insecure
child, “cautious,” “fear[ful],” “vulnerable” and “easily
chilled.” To support her view, she repeatedly cites NLRB
v. Gissel Packing Co., 395 U.S. 575 (1969), but she does
not give a crucially important word in the language she
quotes from that decision the weight it deserves. In Gissel,
the Supreme Court said that a proper balancing of em-
ployer and employee rights “must take into account the
economic dependence of the employees on their employ-
ers, and the necessary tendency of the former, because of
that relationship, to pick up intended implications of the
latter that might be more readily dismissed by a more dis-
interested ear.” Id. at 617 (emphasis added). Intended im-
plications, not speculative or imagined ones. This does
not mean, contrary to our dissenting colleague’s misread-
ing of our analysis, that a rule will only be found unlawful
if the employer intended to chill Section 7 activity, let
alone that intent is an element in Section 8(a)(1) cases.
Rather, the Supreme Court’s decision in Gissel reinforces
what we have already stated: employees interpret work-
place rules from a viewpoint that we and the Fifth Circuit
have termed the “everydayness of their job,” and from that
perspective a reasonable employee does not presume a
Section 7 violation lurks around every corner.23 Moreo-
ver, in adopting this viewpoint, we break no new ground.
See Lutheran Heritage, 343 NLRB at 646 (the Board
“must not presume improper interference with employee
rights"); Lafayette Park Hotel, 326 NLRB 824, 825 (1998)
(rejecting interpretation that would require the Board to
“attribut[e] to the [r]espondent an intent to interfere with
employee rights”).
In contrast, the dissent’s analysis—like that of the for-
mer Board majority that misapplied the “would reasona-
bly construe” prong of Lutheran Heritage in case after
case—posits so-called reasonable employees whose
employee would read the rule to apply to such activity simply because
the rule could be interpreted that way” (emphasis in original).).
23 For example, a reasonable employee of the Respondent would un-
derstand that her Sec. 7 right to engage with her fellow employees to
advocate for better terms and conditions of employment would encom-
pass the right to inform third parties of current terms and conditions.
Nevertheless, she would also recognize that a prohibition on the dissem-
ination of “client/vendor lists,” among numerous other confidential and
proprietary business records maintained by the Respondent, is not aimed
at curtailing her Sec. 7 rights but at protecting confidential business rec-
ords. Accordingly, the reasonable employee would understand that she
may appeal to third parties, including clients and vendors, but she may
not disseminate the Respondent’s client/vendor lists. This is a distinction
easily understood and a prohibition that does not unduly trench on the
exercise of Sec. 7 rights.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
delicate sensibilities will not permit them to engage in un-
ion or other protected concerted activities unless their em-
ployers’ rules cannot be read to prohibit those activities.
We think that the vast majority of actual employees would
reject this well-intentioned but patronizing assessment.
We believe that the reasonable employee posited by the
Fifth Circuit in T-Mobile USA, above, by Member Kaplan
in Boeing, and by us in our decision today better corre-
sponds to the self-reliance, common sense, and team spirit
that have always characterized America’s workers. In
saying as much, however, we do not disregard the reality,
emphasized by the Court in Gissel and by our colleague,
that employees are economically dependent on their em-
ployer. But neither Boeing nor this decision gives em-
ployers free rein to maintain rules that trample on employ-
ees’ rights under Section 7 of the Act. We simply con-
clude that the rules at issue here do not.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. October 10, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER McFERRAN, dissenting.
In Boeing Co, a newly-constituted Board majority pur-
ported to bring “certainty and clarity” to the law by im-
posing a new test for determining the legality of employer
work rules.1 The decision was a “jurisprudential jumble
of factors, considerations, categories, and interpretive
principles”2 that served only to bring more confusion to
this difficult area of Board law. Perhaps recognizing the
shortcomings of the original decision, today the majority
purports to clarify Boeing itself, on its own initiative, with-
out first seeking public participation by inviting amicus

1 365 NLRB No. 154, slip op. at 14 (2017).
2 Id., slip. op. at 37 (dissenting opinion).
3 See, e.g., Cordua Restaurants, Inc., 368 NLRB No. 43 (2019); Elec-
trolux Home Products, Inc., 368 NLRB No. 34 (2019); Walmart Stores,
Inc., 368 NLRB No. 24 (2019); UPMC, 368 NLRB No. 2 (2019); Alstate
Maintenance, LLC, 367 NLRB No. 68 (2019).
briefs or engaging in rulemaking. Unfortunately, this ef-
fort fails. The Boeing test remains a mess.
But, even more problematic, today’s “clarification”
seems to confirm what my dissent predicted was the likely
outcome of Boeing: that entire broad subject areas of
workplace regulation—whether it be the “civility” rules
the majority reached out to address in Boeing or the con-
fidentiality and media rules at issue at issue here—will
henceforth be categorically exempt from scrutiny, regard-
less of how a reasonable employee would read the partic-
ular work rule in question, or what chilling effect the rule
might have on workers’ exercise of their Section 7 rights.
It appears that, under Boeing, the majority can now pick a
case with a type of rule, analyze that particular rule (in-
cluding its context and specific wording) to determine that
it could not reasonably be read to apply to Section 7 activ-
ity (thus necessitating no application of the balancing test
that would allow for weighing of worker rights and em-
ployer interests), and then proceed to broadly declare that
any other similar workplace rule is lawful, regardless of
the language or context of that rule, how it would be read,
or the likely impact on exercise of Section 7 rights. This
simply cannot be correct, and entirely ignores the statutory
protections it is our job to enforce. But that is exactly what
happens here. The majority upholds two work rules that—
as drafted and interpreted consistent with the Supreme
Court’s guidance—have a reasonable tendency to chill
employees from exercising their Section 7 rights, and then
insulates any similar rules from future review. The “clar-
ification” in this case thus further erodes the Board’s abil-
ity to protect Section 7 rights. It can be added to a long
and growing list of such holdings by the majority.3
I
Before analyzing the majority’s purported “clarifica-
tion” of Boeing in more detail, I should briefly explain,
again, why Boeing was wrongly decided.4
To begin, Boeing rejected a well-established legal test,
applied for more than 13 years, which had never been re-
jected by a federal court of appeals—and it did so sua
sponte, without notice and without inviting briefing from
the public, contrary to the Board’s traditional norms.5 To-
day, again dispensing with public participation, the major-
ity treats the Board’s pre-Boeing approach—the Lutheran
Heritage analytical framework6 —as irrational, but it
points to no judicial support for its view. As I pointed out
in dissent, the courts not only applied the Lutheran
4 As indicated, my views are explained at length in my Boeing dissent.
365 NLRB No. 154, slip op. at 29–44. I also endorse the dissenting view
of then Member Pearce. See id., slip op. at 23–29.
5 Id., slip op. at 31–33.
6 Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).
LA SPECIALTY PRODUCE CO. 9
Heritage framework without criticism, but even struck
down certain employer rules that the Board had upheld un-
der that test.7
Second, Boeing was based on a fundamental misunder-
standing of Lutheran Heritage and on a failure to consider
the key aspect of the problem before the Board in this area
of the law: “how to address the fact that some work rules
maintained by employers will discourage employees sub-
ject to the rules from engaging in activity that is protected
by the National Labor Relations Act.”8 Contrary to the
Boeing majority, Lutheran Heritage did not somehow pro-
hibit the Board from considering an employer’s legitimate
business justifications for its work rules; indeed, judicial
decisions applying Lutheran Heritage refute that claim.9
What Lutheran Heritage required—with the approval of
the courts—is that employer rules that infringe on em-
ployee rights be narrowly tailored and that employers
prove that their legitimate business justification for a rule
outweighs the rule’s adverse effect on employees.10 The
Boeing majority’s other criticisms of Lutheran Heritage—
including that it somehow required employers to eliminate
all ambiguities from its rules—are also easily shown to be
contrived.11
Third, Boeing wrongly broke with the key premise of
Lutheran Heritage: “that for purposes of administering
the National Labor Relations Act, an employer’s work
rules should be evaluated from the perspective of the em-
ployees subject to the rules—and protected by the stat-
ute.”12 Because employer work rules are evaluated under
the standard of Section 8(a)(1) of the Act, which makes it
an unfair labor practice for an employer “to interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed in [Section 7]” of the Act,13 the Board is re-
quired to follow the admonition of the Supreme Court that:
Any assessment of the precise scope of employer ex-
pression … must be made in the context of its labor re-
lations setting. Thus, an employer’s rights cannot out-
weigh the equal rights of the employees to associate
freely, as those rights are embodied in [Section] 7 and
protected by [Section] 8(a)(1). . . . And any balancing of
those rights must take into account the economic de-
pendence of the employees on their employers, and the
necessary tendency of the former, because of that rela-
tionship, to pick up intended implications of the latter
that might be more readily dismissed by a more disinter-
ested ear.

7 Boeing, supra, 365 NLRB No. 154, slip op. at 30 & fn. 6 (dissenting
opinion).
8 Id., slip op. at 34.
9 Id. at 35.
10 Id., citing Midwest Division-MMC, LLC v. NLRB, 867 F.3d 1288,
1302 (D.C. Cir. 2017).
NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969) (em-
phasis added). Boeing violated this requirement.
Finally, Boeing’s rule-categorizing scheme—sorting
rulings into three boxes: always-lawful, sometimes-law-
ful, and never-lawful—serves neither claimed goal of cer-
tainty or clarity, not for employers and certainly not for
employees, who must decide whether their contemplated
Section 7 activity could cost them their jobs.14 Moreover,
as the Boeing Board’s blanket approval of “civility” rules
illustrated, Boeing arbitrarily and capriciously dispensed
with individualized scrutiny for work rules that fit into ap-
proved categories based on their subject matter—and re-
gardless of their wording or whether they were narrowly
tailored.15
In short, Boeing reflected a failure to engage in reasoned
decision making.
II.
None of the fatal flaws in Boeing are fixed today. In-
stead, the majority perpetuates the problems created by
that earlier decision. I address each of today’s purported
clarifications of Boeing in turn.
A.
First, the majority holds that “it is the General Counsel’s
initial burden in all cases to prove that a facially neutral
rule would [emphasis in original] in context be interpreted
by a reasonable employee . . . to potentially interfere with
the exercise of Section 7 rights.” This means, says the
majority, that the rule is interpreted from “the perspective
of an objectively reasonable employee who is ‘aware of
his legal rights but who also interprets work rules as they
apply to the everydayness of his job.’” Thus, a “chal-
lenged rule may not be found unlawful merely because it
could be interpreted, under some hypothetical scenario, as
potentially limiting some type of Section 7 activity, or be-
cause the employer failed to eliminate all ambiguities
from the rule. . . .” But this description of the employee
perspective is in tension with the Supreme Court’s admon-
ition in Gissel.
In my Boeing dissent, discussing how the Board might
refine the Lutheran Heritage framework, I suggested that:
[T]he Board might take heed of the Fifth Circuit’s recent
observation that the Board has not “specifically defined”
the “reasonable employees” reflected in the Lutheran
Heritage standard. A more specific definition—neces-
sarily grounded in the . . . observation of the Gissel
11 Id. at 36.
12 Id. at 38.
13 29 U.S.C. §158(a)(1).
14 Boeing, supra, 365 NLRB No.154, slip op. at 38–39 (dissenting
opinion).
15 Id. at 39–40.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Court that employees are economically dependent on
their employers and thus particularly sensitive to coer-
cive implications in employer statements –might aid the
Board, the courts, and the public.
365 NLRB No. 154, slip op. at 43 (emphasis added; internal
citation omitted), citing T-Mobile USA, Inc., 865 F.3d 265,
271 (5th Cir. 2017).16
In today’s decision, the majority fails to heed the Gissel
Court’s admonition that the Board “must take into account
the economic dependence of the employees on their em-
ployers” and the “necessary tendency” of employees to in-
terpret employer statements as coercive, even where a
third party would not. Put another way, a reasonable em-
ployee is a vulnerable employee, easily chilled—and that
is the perspective the Board must adopt in interpreting em-
ployer work rules. Instead, the majority refers to an “ob-
jectively reasonable employee who is ‘aware of his legal
rights but who also interprets work rules as they apply to
the everydayness of his job.’” What this test actually
means is hopelessly unclear.17 What is clear is that it can-
not be reconciled with Gissel.
The majority insists that it does not “disregard the real-
ity, emphasized by the Court in Gissel . . . that employees
are economically dependent on their employer.” Yet it
characterizes my view that employees must therefore be
treated as vulnerable and easily chilled —for purposes of
the Board’s application of Section 8(a)(1) of the Act and
its interpretation of employer rules—as “well-intentioned
but patronizing.” It should be clear that the majority’s
quarrel is less with me than with Congress and the

16 “Such a refined definition,” I explained, “would want to take into
account the level of knowledge concerning their Section 7 rights that may
reasonably be attributed to employees, as well as an informed under-
standing of what forms of Section 7 activity are most commonly under-
taken—or considered—in the typical workplace, where most workers are
not represented by a union.” Id.
17 For purposes of effectively administering Sec. 8(a)(1) of the Act,
the Board should assume that a reasonable employee is one who contem-
plates engaging in Sec. 7 activity that may be covered by a rule and who
wishes to avoid subjecting herself to possible discipline or discharge for
violating the rule—the lawfulness of the rule turns on whether it would
“interfere with, restrain or coerce” the employee in exercising her rights
under the Act. To assume otherwise—such as by focusing on the ap-
plicability of rules to the “everydayness of [the employee’s] job” that do
not involve protected concerted activity – neglects the Act’s core purpose
of protecting such activity. It is precisely those situations that do not
represent the “everydayness of [the employee’s] job” that the Act is con-
cerned about.
The majority does not explain how an employee’s “aware[ness] of his
legal rights” should be taken into account in interpreting employer
rules—it is unclear whether the majority is suggesting that an employee
who is “aware of his legal rights” would be particularly cognizant of how
rules could interfere with those rights, or, conversely, whether the sug-
gestion is that the “aware” employee would naturally tend to interpret
rules as consistent with his legal rights—if the intention is the latter, the
majority offers no basis for its assumption that employees will inevitably
Supreme Court. That employers have power over their
employees, and that employees require countervailing
statutory protection in the workplace, are core premises of
the National Labor Relations Act. These are the reasons
why Section 8(a)(1) exists in the first place. Perhaps Con-
gress was wrong to think that employees have “delicate
sensibilities” (in the majority’s words) and should instead
have trusted in the “self-reliance, common sense, and team
spirit that have always characterized America’s workers”
(again quoting the majority), but Congress made its choice
in 1935 and the Board must honor it. The majority is
simply mistaken, meanwhile, if it means to suggest that
the Gissel Court was focused not on how employees will
tend to interpret their employer’s statements, given their
economic dependence, but rather on what the employer’s
actual intent is.18 Intent is not, and has never been, a nec-
essary element of a Section 8(a)(1) violation: an em-
ployer’s rule can be unlawfully coercive regardless of
whether the employer intends to coerce employees.19
The majority’s approach is perplexing, too, in insisting
that the General Counsel must prove that a work rule
“would in context be interpreted . . . to potentially interfere
with the exercise of Section 7 rights.” The emphasis on
“would” is the majority’s, but its meaning is elusive. The
majority seems to mean that the coercive interpretation of
a rule must be inevitable: the necessary interpretation of
the rule, not merely one reasonable interpretation of the
rule or even the most reasonable interpretation, but the
only reasonable interpretation. If this understanding is
correct,20 then the majority is imposing a test that is far too
presume their employers’ best intentions in crafting rules that subject
them to possible discipline or discharge.
18 The majority asserts that I “ignore[] a crucially important word” in
the Gissel Court’s admonition, which refers to the “intended implica-
tions” of an employer’s statements. 395 U.S. at 617 (emphasis added).
But the majority takes the word “intended” out of context. The Court’s
reference was to what employees would perceive as the employer’s “in-
tended implications”—given the “labor relations setting” of the state-
ment and their “economic dependence” on the employer (id.)—not to
what the employer actually did intend. To suggest, as the majority does,
that any employee interpretation not intended by the employer is “spec-
ulative” or “imagined” fundamentally misunderstands the Court’s point.
19 E.g., Webasto Sunroofs, Inc., 342 NLRB 1222, 1223 (2004). See
also Quicken Loans, Inc. v. NLRB, 830 F.3d 542, 549 (D.C. Cir. 2016)
(“[T]he Board’s concern about discouraging protected employee activi-
ties exists just the same ‘whether or not that is the intent of the em-
ployer.’”).
20 The majority does not take up my invitation to state precisely what
it means when it emphasizes the word “would.” Instead, the majority
simply says that Lutheran Heritage (the precedent it rejects) also uses
the word “would” in its standard, while suggesting that I (as a supposed
“proponent of Lutheran Heritage”) should not be heard to complain, and
citing the “erstwhile Board majority’s deviation from [the Lutheran Her-
itage] standard in practice.” The majority’s criticism does nothing to
clarify the Board’s current standard. It confirms, if anything, that Lu-
theran Heritage itself was ambiguous—just like its replacement.
LA SPECIALTY PRODUCE CO. 11
strict to adequately protect Section 7 rights, especially
considering that this test is only the threshold for finding
a violation, a prerequisite that must be satisfied even be-
fore the Board will even consider balancing employee
rights and employer interests. The majority’s approach is
obviously contrary to the Board’s longstanding approach
to Section 8(a)(1) of the Act, which asks whether an em-
ployer’s actions or statements have a “reasonable ten-
dency” to (in the Act’s words) “interfere with, restrain, or
coerce employees”—not whether they necessarily would
have that effect.21 The same principle applies to employer
work rules.22
B.
The majority’s second purported clarification of Boeing
addresses the balancing test to be applied if (but only if)
the General Counsel carries his initial burden. As ex-
plained, the majority announces today that the Board will
often be able to “strike a general balance of employees
rights and employer interests,” making it unnecessary to
engage in a “case-by-case balancing” for “certain types of
rules.” The arbitrary and capricious nature of the major-
ity’s approach here should be obvious.
First, the majority fails to explain which party has the
burden of proof with respect to the balancing. The Su-
preme Court has made clear that when employees’ Section
7 rights are implicated, it is the employer’s burden to prove
that its legitimate business interests should nevertheless
prevail and that no unfair labor practice should be found,
despite the infringement on employee rights.23 This prin-
ciple applies when an employer’s work rule is at issue, as
the District of Columbia Circuit recently explained, ob-
serving that “[m]aintaining a rule reasonably likely to chill
employees’ Section 7 activity amounts to an unfair labor
practice unless the employer ‘present[s] a legitimate and

That I applied Lutheran Heritage as Board law when it was Board law
hardly makes me a “proponent” of the decision. I did not participate in
the 2004 decision, but I treated it (and its progeny) as precedent. My
criticism of Boeing does not make me by default a “proponent” of Lu-
theran Heritage. Indeed, my Boeing dissent explained my views about
how the Board might have revisited its approach in work rules in ways
that did not result in the muddled Boeing test and its failed clarification
today.
21 See Capital Medical Center, 364 NLRB No. 69, slip op. at 15
(2016), enfd. 909 F.3d 427 (D.C. Cir. 2018), cert. denied 139 S.Ct. 1445
(2019); Gunderson Rail Services, 364 NLRB No. 30, slip op. at 35 (June
23, 2016), rev. dismissed 2017 WL 6603635 (D.C. Cir. 2017); American
Freightways Co., 124 NLRB 146, 147 (1959).
22 See, e.g., ITT Federal Services Corp., 335 NLRB 998, 1002 (2001);
Engelhard Corp., 342 NLRB No. 5, slip op. at 16 (2004); Naomi Knitting
Plant, 328 NLRB 1279, 1280 (1999); Williamhouse of California, 317
NLRB 699, 713 (1995).
23 See NLRB v. Baptist Hosp., Inc., 442 U.S. 773, 781–82 (1979);
Beth Israel Hosp. v. NLRB, 437 U.S. 483, 498–505 (1978); Republic Avi-
ation Corp. v. NLRB, 324 U.S. 793, 803–04 (1945).
substantial business justification for the rule’ that ‘out-
weigh[s] the adverse effect on the interests of employ-
ees.’”24 Today, the majority quotes language from Boeing
that apparently would flip the established burden of proof,
imposing it on the General Counsel and so finding a vio-
lation of the Act only “if the [employer’s] justifications
are outweighed by the adverse impact on rights protected
by Section 7.”25 It is no answer to point out that General
Counsel has the burden to prove a violation of the Act: the
cases establish that he has carried that burden if he shows
that Section 7 rights have been infringed and if the em-
ployer fails to prove that the infringement was justified.
Nor is it sufficient to suggest that because the Board ap-
plies a balancing test, neither party has a burden of proof.
The second defect in the majority’s endorsement of a
“general balancing” approach is that it eliminates any con-
sideration of the language of a particular rule and the re-
quirement that a rule that infringes on Section 7 rights be
narrowly tailored. Under the majority’s approach,
after the Board finds a rule of a certain type to be lawful,
every rule of that type will be classified as lawful regard-
less of its wording, as long as the employer’s purported
“target” or “interest” is the same as the first employer’s
and the rule does not explicitly restrict concerted em-
ployee activity regarding terms of employment.26 This
categorical approach flies in the face of the long-estab-
lished principle, applied by the Board and by the federal
courts, that a rule restricting employees’ protected con-
certed activity must be narrowly tailored to serve an em-
ployer’s legitimate interests—and not worded more
broadly than necessary to do so.27 This principle is illus-
trated even in cases where the Board has addressed a cat-
egory of rules: some rule language is permitted; some is
not.28
24 Midwest Division-MMC, LLC v. NLRB, 867 F.3d 1288, 1302 (D.C.
Cir. 2017), quoting Hyundai America Shipping Agency, Inc. v. NLRB,
805 F.3d 309, 314 (D.C. Cir. 2015).
25 Boeing, supra, 365 NLRB No. 154, slip op. at 16.
26 The majority asserts that this categorical approach to finding rules
lawful is “consistent with other standards set by a similar one-time bal-
ancing of employee rights and employer interests in precedent that Boe-
ing did not disturb.” But the cases the majority cites in support of this
assertion imposed explicit restrictions (no-solicitation, no-distribution
rules) that required no interpretation of their meaning. Those cases did
not address rules that could be reasonably interpreted in different ways.
27 See, e.g., Flex Frac Logistics, LLC v. NLRB, 746 F.3d 205, 210
fn.4 (5th Cir. Cir. 2014); NLRB v. Northeastern Land Services, Ltd., 645
F.3d 475, 483 (1st Cir. 2011); Cintas Corp. v. NLRB, 482 F.3d 463, 470
(D.C. Cir. 2007); Guardsmark, LLC v. NLRB, 475 F.3d 369, 380 (D.C.
Cir. 2007); William Beaumont Hospital, 363 NLRB No. 162, slip op. at
4 (2016).
28 See, e.g., Our Way, Inc., 268 NLRB 394 (1983) (examining no-
solicitation and no-distribution rules and distinguishing between lawful
prohibitions applying to “working time” and unlawful prohibitions ap-
plying to “working hours”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
C.
The majority’s third “point of clarification” acknowl-
edges that a “general balancing” of rights and interests will
not always be possible, because sometimes “the context of
the rule and the competing rights and interests are specific
to that rule and that employer.” This assertion seems to
state the exception to the majority’s rule, but the majority
neither gives the exception content, nor offers any illustra-
tions. Notably, the majority never clearly acknowledges
that the particular language of work rules must be a crucial
consideration in every case. Employees consulting an em-
ployee handbook or a posted list of rules are confronted
not with general categories of rules, but with specific rules
that they must follow to keep their jobs.
III.
This case illustrates all of the flaws in the majority’s ap-
proach, most notably the failure of the majority to engage
with the actual language of particular rules and to take into
account the vulnerability of employees in determining the
reasonably likely effect of the rules on Section 7 activity.
Here, as explained, the majority not only upholds the two
rules at issue—the Media Contact Rule and the Confiden-
tiality Rule—but holds that employers are always permit-
ted to maintain rules of the same type. But both of the
rules in question have a reasonable tendency to chill em-
ployees from engaging in protected concerted activity, and
neither rule is narrowly tailored. The majority insists that
it has “not given all client-and-vendor confidentiality rules
or all media contact rules a categorical stamp of approval.”
The majority’s decision, however, recites that the Board
will “now generally categorize rules that prohibit the dis-
closure of confidential and propriety customer and vendor
lists as Category 1(a) rules,” which are always lawful to
maintain, and it also places “rules that prohibit employees
from speaking to the media on behalf of their employer”
in the same always-lawful category. Because the two
rules here are, in fact, impermissibly overbroad, the ma-
jority’s general categorization of such rules effectively
means that all such overbroad rules will be lawful: the ma-
jority does not adopt a rule-by-rule approach.
A.
The Respondent’s media-contact rule states (my em-
phasis): “Employees approached for interview and/or
comments by the news media, cannot provide them with
any information. Our President, Michael Glick, is the only
person authorized and designated to comment on Com-
pany policies or any event that may affect our organiza-
tion.”

29 365 NLRB No. 154, supra, slip op. at 38, citing Gissel, supra, and
Whole Foods Market, 363 NLRB No. 87, slip op. at 4 fn. 11 (2015).
In the majority’s view, when “reasonably interpreted,”
this rule “speaks only to situations in which employees are
approached by the news media, and it only prohibits em-
ployees from speaking on the Respondent’s behalf.”
“[A]n “objectively reasonable employee,” the majority in-
sists, “would understand that the second sentence qualifies
the first sentence by explaining that only Glick is author-
ized and designated to comment on company matters.”
Moreover, “[i]f the Respondent meant to prohibit its em-
ployees from ever speaking to the news media, it would
not have begun by limiting employees from speaking to
the news media only when approached.” According to the
majority, the “overall import of the rule”—not its particu-
lar language—is decisive.
In other words, the rule’s two blanket prohibitions on
providing the media with “any information” and on com-
menting on “any event that may affect our organization”
(separate and apart from commenting on “Company poli-
cies”), under the majority’s view, cannot possibly mean
what they clearly say, because employees would neces-
sarily grasp the “overall import of the rule.” This is a dis-
tortion of plain English and common sense. There is no
dispute that the Respondent may lawfully prevent employ-
ees from speaking on its behalf without authorization—
with a narrowly tailored rule. But a bar on “provid[ing]
any information” whatsoever and on “comment[ing] on
any event that may affect our organization,” without fur-
ther qualification (such as the language the majority inex-
plicably reads into the rule limiting its scope to statements
officially made on behalf of the employer), would be read,
on its plain language, by a reasonable employee to restrict
employees from communicating about terms of employ-
ment and other protected activity. This is all the more true
from the perspective of employees, “who are dependent
on the employer for their livelihood [and] would reasona-
bly take a cautious approach and refrain from engaging in
Section 7 activity for fear of running afoul of a rule whose
coverage is unclear.”29 And the majority’s speculation
that an employee would read the rule to suggest that their
employer would prohibit them from talking to media
“when approached” but would not care what they said if
not approached cannot be taken seriously. No reasonable
person, let alone a reasonable employee, would interpret
the rule so illogically.
The majority also arbitrarily refuses to consider the fact
that this rule was not narrowly tailored, as the Act de-
mands to ensure that employees are not chilled from exer-
cising their Section 7 rights. This is not a matter of em-
ployees “scour[ing] the handbook searching for
LA SPECIALTY PRODUCE CO. 13
ambiguities,” but of an employer’s failure to take reason-
able steps to avoid infringing on statutory rights. It would
have been easy for the Respondent to draft the rule in a
way that complied with the Act while achieving the aim
of the rule endorsed by the majority. The addition of the
phrase “on the Company’s behalf”—the purported es-
sence of the rule—to each of the rule’s two sentences, for
example, would have avoided any intrusion on Section 7.
But in the majority’s view, such an elementary corrective
is tantamount to requiring an employer to “eliminate all
ambiguities from the rule, an all-but-impossible task,” and
the rule’s obvious encroachment on Section 7 activity is
dismissed as “some hypothetical scenario.” This ignores
reality. The Board’s obligation to provide “certainty and
clarity” to employers to the extent possible does not, as the
majority implies, create a license for the majority to pro-
vide such “clarity” by ignoring the requirements of the
Act.30
B.
The Respondent’s confidentiality rule reads as follows
(with emphasis on the terms alleged to be unlawful):
Every employee is responsible for protecting any
and all information that is used, acquired, or added
to regarding matters that are confidential and pro-
prietary of [Respondent] including but not limited to
client/vendor lists, client/vendor information, ac-
counting records, work product, production pro-
cesses, business operations, computer software,
computer technology, marketing and development
operations, to name a few. Confidential information
will also include information provided by a third
party and governed by a non-disclosure agreement
between [Respondent] and the third party. Access to
confidential information should be disclosed on a
“need-to-know” basis and must be authorized by
management. Any breach to this policy will not be
tolerated and will be subject to disciplinary and legal
action.
The key phrase in this rule is “client/vendor lists,”
which the judge quite properly found made the rule un-
lawful.31 It is well-established that employees have the
right to disclose the names and locations of their

30 In First National Maintenance Corp. v. NLRB, 452 U.S. 666
(1981), cited by the majority and in Boeing, and in which the Supreme
Court referred to an employer’s need for “some degree of certainty be-
forehand” in order to “reach decisions without fear of later evaluations
labeling its conduct an unfair labor practice,” the Court was referring to
the employer’s obligation to bargain over changes in terms of employ-
ment under Sec. 8(a)(5) of the Act, not to the wording of work rules un-
der Sec. 8(a)(1). It is clearly easier for the Board to provide “certainty”
on whether a subject is bargainable as a term of employment than to de-
fine generalized categories of lawful (or unlawful) work rules that are
ambiguously worded.
employer’s clients and vendors to third parties (including
a union) for the purpose of asking them for support in the
course of their protected concerted activities.32 The ma-
jority, however, treats as accurate the Respondent’s asser-
tion that “client/vendor lists” must be read to refer solely
to a specific set of computerized lists of clients and ven-
dors it maintains. Since those particular lists contain sen-
sitive information about pricing and discounts, the major-
ity finds the rule lawful, noting that it “says nothing about
talking to the Respondent’s clients or vendors” and “does
not prohibit employees from disclosing the names of the
Respondent’s customers and vendors to third parties.”
The majority further suggests that the rule is lawful be-
cause “there is no basis for finding that employees sup-
porting the Union’s campaign would reasonably believe
that the Union could not obtain this information from em-
ployees without disclosure of the [computerized] client
and vendor lists.”
There is no dispute that the Respondent’s computerized
and annotated lists are the Respondent’s property and are
properly subject to a narrowly tailored confidentiality rule.
But as the Respondent’s rule was worded, an employee
would reasonably conclude that the rule would constrain
him from generating or using a list of the employer’s cus-
tomers for purposes of Section 7 activity; indeed, the
phrase “client/vendor lists” might well include any written
list, or an oral list, or even two or more names. Again, the
majority reads into the rule clarifying language that is not
there. We cannot assume a reasonable employee would
necessarily do the same.
IV.
Employees in the diverse workplaces covered by the
National Labor Relations Act are governed by innumera-
ble and widely varying employer work rules. Some of
these rules have a reasonable tendency to chill the exercise
of Section 7 rights without justification. It is the Board’s
responsibility to redress such violations of the Act. With-
out justification, Boeing jettisoned the analysis the Board
had carefully crafted for this purpose and replaced it with
a new framework that is not merely unworkable, but im-
permissible.33 My colleagues’ attempt to “clarify” Boeing
in this case, and their refusal to find the challenged rules
31 The separate phrase “client/vendor information,” also appearing in
the rule, was not alleged to be unlawful.
32 Trinity Protection Services, 357 NLRB 1382, 1383 (2011); Kinder-
Care Learning Centers, 299 NLRB 1171 (1990); Allied Aviation Service
Co. of New Jersey, 248 NLRB 229, 230 (1980), enfd. 636 F.2d 1210 (3d
Cir. 1980).
33 See Guardsmark, LLC v. N.L.R.B., 475 F.3d 369, 374 (D.C. Cir.
2007) (accepting the “reasonably tend to chill” standard as a permissible
interpretation of Sec. 8(a)(1) with respect to work rules and making clear
that the court will deny enforcement of “an unreasonable or otherwise
indefensible interpretation of Section 8(a)(1)'s prohibition”)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
here unlawful, have only confirmed this fact. As in Boe-
ing itself, the only “clarity” provided in this case is that
employer interests will routinely prevail when work rules
are challenged and that many more employees will be de-
terred from engaging in Section 7 activity as a result. I
therefore dissent.
Dated, Washington, D.C. October 10, 2019
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
Noah J. Garber, Esq., for the General Counsel.
James A. Bowles, Esq., for the Respondent.
Andrew H. Baker, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
AMITA BAMAN TRACY, Administrative Law Judge. This case
was tried in Oakland, California, on March 26, 2018. The Gen-
eral Counsel alleges, in the January 31, 2018 complaint, based
on an October 13, 2017 charge filed by Teamsters Local 70, In-
ternational Brotherhood of Teamsters (Charging Party or Un-
ion), that Respondent violated Section 8(a)(1) of the National
Labor Relations Act (the Act) by unlawfully maintaining two
rules in its employee manual: the “Confidentiality & Non-Dis-
closure” rule and the “Media Contact” rule.1 Respondent filed a
timely answer.
For the reasons that follow, I find that Respondent violated
Section 8(a)(1) of the Act with regard to both rules.
On the entire record,2 including my observation of the

1 On March 5, 2018, the Regional Director for Region 32 of the Na-
tional Labor Relations Board (Board) issued an order approving a partial
withdrawal request which partially withdrew complaint allegations.
2 Although I have included citations to the record to highlight partic-
ular testimony or exhibits, my findings and conclusions are not based
solely on those specific record citations but rather on my review and con-
sideration of the entire record for this case. In addition, the transcript in
this case is generally accurate, but I make the following corrections to
the record: Transcript (Tr.) 5, Line (L.) 3: “preliminary” should be “for-
mal”; and Tr. 5, L. 7: “Baman” should be included as the middle name.
3 I further note that my findings of fact encompass the credible testi-
mony and evidence presented at trial, as well as logical inferences drawn
therefrom. A credibility determination may rely on a variety of factors,
including the context of the witness’ testimony, the witness’ demeanor,
the weight of the respective evidence, established or admitted facts, in-
herent probabilities, and reasonable inferences that may be drawn from
the record as a whole. Double D Construction Group, 339 NLRB 303,
305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Au-
tomotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. 56
Fed.Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all-or-
nothing propositions—indeed nothing is more common in all kinds of
judicial decisions than to believe some, but not all, of a witness’
demeanor of the witnesses,3 and after considering the briefs filed
by the General Counsel, Charging Party, and Respondent,4 I
make the following
FINDINGS OF FACT AND ANALYSIS
I. JURISDICTION
Respondent, a State of California corporation with an office
and place of business in Hayward, California (facility), is en-
gaged in the nonretail sale and distribution of produce, where it
annually sold and shipped from its facility goods valued in ex-
cess of $50,000 directly to points outside the State of California.
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.
Based on the above, I find that these allegations affect com-
merce and that the Board has jurisdiction of this case, pursuant
to Section 10(a) of the Act.
II. THE ALLEGED UNLAWFUL RULES
A. Respondent’s Organization and the LA & SF Specialty
Employee Manual
Respondent is a wholesale distributor of produce and other
fine foods and specialty foods to white tablecloth restaurants, ho-
tels, and specialty grocers (Tr. 25). Respondent’s corporate of-
fice is in Santa Fe Springs, California, and it has facilities in
Northern and Southern California including Hayward, Califor-
nia, as well as in Arizona and Nevada (Tr. 26). Michael Glick
(Glick) is Respondent’s owner (Tr. 26).
Wesley Wong (Wong), who is Respondent’s director of hu-
man resources and customer service, testified that since at least
1998 Respondent has maintained the LA & SF Specialty Em-
ployee Manual (the Manual) which contains the two rules at is-
sue (Tr. 25, 27). Wong admitted that he was not involved in the
drafting of these rules but discussed them with Glick and other
members of management (Tr. 26–27, 34).
testimony. Daikichi Sushi, 335 NLRB at 622. In this matter, there are
no significant credibility disputes.
4 Other abbreviations used in this decision are as follows: “GC Exh.”
for General Counsel’s exhibit; “GC Br.” for the General Counsel’s brief;
“CP Br.” for the Charging Party’s brief; and “R. Br.” for Respondent’s
brief. After the filing of briefs, Respondent, on June 12, 2018, filed a
notice of recent supplemental authority in which Respondent cites to
General Counsel memorandum 18–04, dated June 6, 2018. The Charg-
ing Party “opposes” the notice. General Counsel memorandums are
simply guidance for Regional Offices, and have no binding legal prece-
dent on administrative law judges who are bound by Board precedent
that neither the Board nor the Supreme Court has reversed. See George
Joseph Orchard Siding, Inc., 325 NLRB 252, 255 (1998) (“the General
Counsel’s memoranda, or indeed other communications or positions of
the General Counsel, like the positions of the counsel for the General
Counsel made at trial, are but the position of a party to the complaint
litigation. As such the General Counsel’s positions-as opposed to joint
General Counsel-Board determinations or provisions-are not binding on
the Board or its judges and are effective only to the extent they are per-
suasive”); see also Western Cab Co., 365 NLRB No. 78, slip op. at 1 fn.
4 (2017). In that regard, since the Board’s decision in The Boeing Co.,
365 NLRB No. 154 (2017), the Board had issued no further decisions in
these rules-type cases.
LA SPECIALTY PRODUCE CO. 15
B. “Confidentiality & Non-Disclosure” Rule
As alleged in the complaint, since at least April 13, 2017, Re-
spondent has maintained a confidentiality and non-disclosure
rule in the Manual. The “Confidentiality & Non-Disclosure”
rule states, in entirety,
Every employee is responsible for protecting any and all infor-
mation that is used, acquired or added to regarding matters that
are confidential and proprietary of [Respondent] including but
not limited to client/vendor lists, client/vendor information, ac-
counting records, work product, production processes, business
operations, computer software, computer technology, market-
ing and development operation, to name a few. Confidential
information will also include information provided by a third
party and governed by a non-disclosure agreement between
[Respondent] and the third party. Access to confidential infor-
mation should be disclosed on a “need-to-know” basis and
must be authorized by management. Any breach to this policy
will not be tolerated and will be subject to disciplinary and legal
action.
(Emphasis added) (GC Exh. 2). The complaint only alleges that
the portion in bold violates the Act.5
Wong described that Respondent’s customer lists, on a com-
puter system, includes addresses, contact information, ordering
preferences, pricing and customer discounts (Tr. 28, 36). Wong
stated also that the customer lists may be manipulated to omit
any information not needed such as pricing (Tr. 36). Wong tes-
tified that Respondent seeks to keep the customer lists confiden-
tial because, “Those are our trade secrets. If those get out to our
competitors, it’s an extremely competitive business. They can
use that against us, especially with outbidding us with the pric-
ing. They can lowball us. They can once they know what the
customer orders, they can approach those customers and attack
us, and outbid us.” (Tr. 29).6 The vendor list is similar to the
customer list but with vendor names and similar information in-
cluding pricing (Tr. 29). Again, Wong testified that Respondent
seeks to keep the vendor list confidential because, “We can get
outbid with pricing. They can undermine us and secure these
vendors that we worked hard to establish relations through the
years.” (Tr. 29).
Wong testified that Respondent considers customer names
and locations to be confidential but confusingly, also stated on
cross-examination that employees could share customer names
with a union because “Employees have the right to say what they
want [. . .] or talk to who they want” (Tr. 37, 40–41, 44–45).
Moreover, when asked about the difference between cus-
tomer/vendor lists and customer/vendor information, as indi-
cated as confidential and proprietary in the rule, Wong stated,
“Well, lists is what we specified before, where you go on a com-
puter and printout a whole list. Information can be anything”
including information already provided on the list (Tr. 41).

5 The Charging Party raises an additional argument that other portions
of the Confidentiality & Non-Disclosure rule also violate the Act (Tr. 41;
CP Br. at 6). However, the General Counsel has the sole authority to
issue the complaint and any amendments. The General Counsel specifi-
cally limited its complaint allegation to the section bolded, and thus, this
Wong offered that if any employee is unclear about the rule, the
employee may ask him to clarify (Tr. 44).
Respondent provided no evidence of economic harm aside
from Wong’s conjecture (Tr. 35). Moreover, Wong testified that
no employee has been disciplined for violating the “Confidenti-
ality & Non-Disclosure” rule (Tr. 31, 34–35).
Union Trustee Richard Fierro (Fierro) testified that the Union
is currently organizing the employees at Respondent’s facility
(Tr. 17–18). Fierro testified that for organizing purposes the
names of clients or vendors from employees to the Union is im-
portant so as to bring awareness to these third parties of the work-
ing conditions of a business’ employees (Tr. 18–19). Fierro ad-
mitted that customer identities could be obtained through em-
ployees but the employees do not know the identities of all the
customers (Tr. 21–23).
C. “Media Contact” Rule
As alleged in the complaint, since at least April 13, 2017, Re-
spondent has maintained a media contact rule in the Manual. The
“Media Contact” rule states, “Employees approached for inter-
view and/or comments by the news media, cannot provide them
with any information. Our President, Michael Glick, is the only
person authorized and designated to comment on Company pol-
icies or any event that may affect our organization” (GC Exh. 2).
Wong testified that Respondent’s reason for the Media Con-
tact rule was to ensure that Glick was the only person authorized
and designated to speak on behalf of Respondent as he did not
want “false information” going out (Tr. 31). Wong admitted that
Respondent has never suffered economic harm by an employee
speaking to the media and no employee has been disciplined for
violating the “Media Contact” rule (Tr. 32, 34–35). However,
Wong stated that if an employee were to speak to the media on
his own behalf, he would not be violating the policy as an em-
ployee has the right to speak to the media when he wants (Tr.
31–32, 45).
Fierro testified that when the Union organizes employees, it
will ask employees to speak to the media to strengthen support
for unionization, to discuss their working conditions, and to pres-
sure a business to improve working conditions for employees
(Tr. 18, 20). These employees speak on their own behalf, and
not on behalf of a business (Tr. 21).
III. CONTENTIONS OF THE PARTIES
The General Counsel alleges that Respondent’s “Confidenti-
ality & Non-Disclosure” rule and “Media Contact” rule in the
Manual violate Section 8(a)(1) of the Act. Specifically, the Gen-
eral Counsel alleges that these rules are category 3 rules under
the Board’s decision in Boeing Co., 365 NLRB No. 154 (2017),
and therefore, unlawful. Furthermore, the General Counsel ar-
gues that Respondent’s business justifications do not outweigh
the adverse impact on employees’ Section 7 rights (GC Br. at 7–
13). The Charging Party sets forth similar arguments as the
decision will only focus on that portion of the rule when determining
whether that section of the rule is unlawful.
6 Wong was asked a couple of questions regarding the California
Trade Secrets Act and the necessity of confidentiality policies due to
trade secrets (Tr. 33–34). Wong stated in response, “I’m not clear on
that, but I will say yes” (Tr. 34).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
General Counsel (CP Br. at 6–8).
Respondent admits that it has maintained these two rules in
the Manual since at least April 13, 2017. However, Respondent
denies that these rules violate the Act as the rules were promul-
gated for legitimate and lawful business reasons such as to pro-
tect proprietary trade secrets which outweigh any potential im-
pact on employees Section 7 rights (R. Br. at 8-19).
IV. ANALYSIS OF UNFAIR LABOR PRACTICE
Section 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 Section 7 [of the Act].”
Section 7 provides that “employees shall have the right to self-
organization, to form, join or assist labor organizations, to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, and shall
also have the right to refrain from any or all such activities.”
Specifically, Section 7 protects employees’ right to discuss, de-
bate, and communicate with each other regarding workplace
terms and conditions of employment.
Under Board law, a work rule is unlawful if “the rule explicitly
restricts activities protected by Section 7.” Lutheran Heritage,
supra at 646 (emphasis in original). Moreover, if a work rule
does not explicitly restrict protected activities, it nonetheless
may 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 applied to restrict the exercise of Section 7 rights.” Id. at
647. However, in Boeing Co., supra, the Board overruled the
“reasonably construe” standard in prong 1 of Lutheran Heritage
and replaced it with a new standard. The Board stated, “When
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 NLRA
rights, and (ii) legitimate justifications associated with the rule.”
Id., slip op. at 3 (emphasis in original). The Board continued,
“the Board will conduct this evaluation, consistent with the
Board’s ‘duty to strike the proper balance between . . . asserted
business justifications and the invasion of employee rights in
light of the Act and its policy’, focusing on the perspective of
employees, which is consistent with Section 8(a)(1).” Id. (em-
phasis in original, footnotes omitted).
Furthermore, the Board, as a result of this balancing, created
three categories of employment policies, rules and handbook
provisions:
 Category 1 will include rules that the Board designates
as lawful to maintain, either because (i) the rule, when
reasonably interpreted, does not prohibit or interfere
with the exercise of NLRA rights; or (ii) the potential
adverse impact on protected rights is outweighed by
justifications associated with the rule. Examples of

7 In this decision, I will not classify these rules per the categories set
forth in Boeing. The Board stated, “The Board will determine, in future
cases, what types of additional rules fall into which category.” Boeing,
supra at slip op. at 4. Thus, until the Board makes specific
Category 1 rules are the no-camera requirement in this
case, the “harmonious interactions and relationships”
rule that was at issue in Williams Beaumont Hospital,
and other rules requiring employees to abide basic
standards of civility.
 Category 2 will include rules that warrant individual
scrutiny in each case as to whether the rule would pro-
hibit or interfere with NLRA rights, and if so, whether
any adverse impact on NLRA-protected conduct is
outweighed by legitimate justifications.
 Category 3 will include rules that the Board will des-
ignate as unlawful to maintain because they would
prohibit or limit NLRA-protected conduct, and the ad-
verse impact on NLRA rights is not outweighed by jus-
tifications associated with the rule. An example of a
Category 3 rule would be a rule that prohibits employ-
ees from discussing wages or benefits with one an-
other.
Id., slip op. at 3–4, 15 (citing Williams Beaumont Hospital, 363
NLRB No. 162 (2016)). These categories are not part of the bal-
ancing test but rather categorical assignment of a rule by the
Board after the decision is made.7 Id.
A. “Confidentiality & Non-Disclosure” Rule
To recap, Respondent’s “Confidentiality & Non-Disclosure”
rule, since at least April 13, 2017, states:
Every employee is responsible for protecting any and all infor-
mation that is used, acquired or added to regarding matters that
are confidential and proprietary of [Respondent] including but
not limited to client/vendor lists, client/vendor information, ac-
counting records, work product, production processes, business
operations, computer software, computer technology, market-
ing and development operation, to name a few. Confidential
information will also include information provided by a third
party and governed by a non-disclosure agreement between
[Respondent] and the third party. Access to confidential infor-
mation should be disclosed on a “need-to-know” basis and
must be authorized by management. Any breach to this policy
will not be tolerated and will be subject to disciplinary and legal
action.
The complaint only alleged the language in bold as a vio-
lation of the Act but to ensure completeness, a reading of
the entire rule is appropriate. As the “Confidentiality &
Non-Disclosure” rule does not explicitly restrict Section
7 activity, and there is no allegation that this rule was
promulgated in response to union activity or been applied
to restrict Section 7 activity, prong 1 of Lutheran Herit-
age is implicated. As explained above, the “reasonably
construed” standard in Lutheran Heritage has been re-
placed with the Boeing balancing test (balancing the le-
gitimate interests served by a facially neutral rule with
determinations on which categories the “Confidentiality & Non-Disclo-
sure” and “Media Contact” rules belong, it is not within my purview to
assign as such.
LA SPECIALTY PRODUCE CO. 17
the potential chilling effect of the rule on the exercise of
Sec. 7 rights). Both the General Counsel and Respond-
ent presented witnesses who testified uncontradicted
about the impact of the rule on the employees and em-
ployer.
Turning to the balancing test, Respondent’s asserted legiti-
mate business justification, as explained by Wong, is that due to
the nature of Respondent’s competitive business, Respondent
needs to keep its proprietary information of pricing and discounts
offered to customers and vendors confidential. Respondent cer-
tainly has a substantial justification in protecting its pricing and
discounts from competitors. However, the rule as stated does not
purport to protect Respondent’s proprietary information of pric-
ing and discounts. To be clear, the General Counsel only alleged
a very narrow portion of this rule to be unlawful. The rule states,
in part, that employees must not divulge customer and vendor
lists. Unfortunately, the record lacks any evidence as to whether
it is well-known to employees what customer and vendor lists
are as defined by Respondent. Customer and vendor lists as read
in the rule may be read to be simply a list of customers and ven-
dors, and not as described by Wong. To add to this confusion,
Wong testified that while customer names and locations are con-
fidential, employees may share this information with a union.
But, the rule also states that customer information is confidential
and proprietary. The lack of clarity as to what is permitted to be
shared by employees is clear when examining the plain language
of the rule and the testimony of Wong. Finally, Respondent
claims that the California Uniform Trade Secrets Act “requires”
this rule (R. Br. at 7, 11–16). I cannot accept this business justi-
fication claim as Wong clearly did not know whether Respond-
ent was required to maintain such a rule (see Tr. 33–34). Even
assuming that Respondent’s arguments are valid, the confusion
in what employees may not share regarding customers and ven-
dors undermines Respondent’s asserted legitimate business jus-
tification.
On the other hand, the potential impact on employees’ Section
7 rights tips the scale in favor of employee rights. Respondent’s
“Confidentiality & Non-Disclosure” rule prohibits employees
from sharing customer and vendor names with third parties such
as a labor organization. Also generally, employees have a Sec-
tion 7 right to appeal to an employer’s customers and vendors for
support in a labor dispute and do not constitute “a disparagement
or vilification of the employer’s product or reputation.” Kinder-
Care Learning Centers, 299 NLRB 1171 (1990) (Allied Aviation
Service Co. of New Jersey, 248 NLRB 229, 230 (1980), enfd.
636 F.2d 1210 (3d Cir. 1980)). Again, Respondent’s “Confiden-
tiality & Non-Disclosure” rule fails to elucidate for employees
what may be shared with third parties. Cf. Macy’s, Inc., 365
NLRB No. 116 (2017) (rule lawful which prohibited use of cus-
tomer information, defining customer information and prohibit-
ing use or disclosure of customers’ social security numbers and
credit card numbers). Thus, Respondent’s “Confidentiality &
Non-Disclosure” rule business justification does not outweigh
the employees’ Section 7 rights.
Respondent argues that no evidence was presented to demon-
strate that the rule “actually interfered” with employees’ Section
7 rights which essentially demonstrates that employees
understand Respondent’s intention for the rule (R. Br. at 10).
However, this argument is unavailing. Inasmuch there is no ev-
idence regarding interference of Section 7 rights, Respondent
also provided no evidence that it suffered from any economic
harm as a result of employees’ violating the rule; in fact, accord-
ing to Wong, employees could divulge lists of customers to third
parties when conducting Section 7 activity and employees would
not be violating the rule. However, as read, said employee con-
duct would be violating the rule. Therein lies the problem with
the rule. The rule, as written, with specific reference to “cus-
tomer/vendor lists” is vague and ambiguous, and the Boeing bal-
ancing test tips in favor of employees’ Section 7 rights. Accord-
ingly, the rule violates Section 8(a)(1) of the Act.
B. “Media Contact” Rule
Respondent’s Media Contact rule, since at least April 13,
2017, states, “Employees approached for interview and/or com-
ments by the news media, cannot provide them with any infor-
mation. Our president, Michael Glick, is the only person author-
ized and designated to comment on company policies or any
event that may affect our organization.” Again, the General
Counsel has not alleged that Respondent’s Media Contact rule
does not explicitly restrict Section 7 activity, and there is no al-
legation that this rule was promulgated in response to union ac-
tivity or been applied to restrict Section 7 activity, prong 1 of
Lutheran Heritage, and the Boeing balancing test are implicated.
Respondent argues that it has a legitimate business interest to
permit only its president to speak on its behalf. Respondent ar-
gues that the phrase “on its behalf” should make clear to any em-
ployee that while they may speak to the media on any subject,
they may not on its behalf (R. Br. at 16). Again, while that ar-
gument may be true, the rule as read precludes employees from
speaking to the media on any subjects regarding Respondent.
While it is certainly a legitimate business reason for Respondent
to designate whom it wants to speak on its behalf, employees’
Section 7 rights certainly tip the scales in their favor. For exam-
ple, Section 7 of the Act permits employees to speak to the public
including the media regarding labor disputes. See Valley Hospi-
tal Medical Center, Inc., 351 NLRB 1250, 1252 (2007), enfd.
sub nom. Nevada Service Employees Local 1107 v. NLRB, 358
Fed.Appx. 783 (9th Cir. 2009).
Respondent concedes that Section 7 rights include employees’
right to speak with the media about working conditions and other
terms and conditions of employment (R. Br. at 16, 18). See
Trump Marina Casino Resort, 355 NLRB 585 (2010) (rule al-
lowing only company executives to speak with the media was
overbroad and without legitimate business justification thereby
violating Sec. 8(a)(1) of the Act); Crown Plaza Hotel, 352
NLRB 382, 385–386 (2008). The Media Contact rule as written
does not clarify that employees may speak to the media on their
own behalf but clearly states that employees may not speak to
the media about Respondent when approached. The second sen-
tence of the Media Contact rule does not make clear to employ-
ees that they can speak to the media on their own behalf. Instead,
the second sentence indicates to employees that they may not
speak to the media about Respondent’s policies which could also
concern working conditions and other terms and conditions of
employment which impacts their Section 7 rights. The Media
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
Contact rule as written creates a chilling effect on employees
when exercising Section 7 rights. Moreover, the Board in Boe-
ing noted that the Board will balance an employer’s legitimate
interests served by a facially neutral policy with the potential
chilling effect of the rule on the exercise of Section 7 rights. Boe-
ing, supra at slip op. 10 fn. 47. Thus, the General Counsel need
not prove actual harm to employees as argued by Respondent (R.
Br. at 17).
In sum, Respondent’s “Media Contact” rule is unlawful, and
violates Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent maintained the following rules in its LA & SF
Specialty Employee Manual since at least April 13, 2017, that
are facially unlawful, which could be understood to prohibit em-
ployees from engaging in activities protected under Section 7 of
the Act, and therefore, violate Section 8(a)(1).
i. In the Confidentiality & Non-Disclosure rule:
Every employee is responsible for protecting any and all infor-
mation that is used, acquired or added to regarding matters that
are confidential and proprietary of [Respondent] including but
not limited to client/vendor lists,
ii. In the Media Contact rule:
Employees approached for interview and/or comments by the
news media, cannot provide them with any information. Our
President, Michael Glick, is the only person authorized and
designated to comment on Company policies or any event that
may affect our organization.
3. The above unfair labor practice affects commerce within the
meaning of Section 2(6) and (7) of the Act.
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. To remedy Respondent’s violations of Sec-
tion 8(a)(1) of the Act, I shall recommend that Respondent post
and abide by the attached notice to employees.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
Respondent, LA Specialty Produce Company, Hayward, Cal-
ifornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining the following unlawful rules in its LA & SF

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.
Specialty Employee Manual:
i. In the Confidentiality & Non-Disclosure rule:
Every employee is responsible for protecting any and all infor-
mation that is used, acquired or added to regarding matters that
are confidential and proprietary of [Respondent] including but
not limited to client/vendor lists,
ii. In the Media Contact rule:
Employees approached for interview and/or comments by the
news media, cannot provide them with any information. Our
President, Michael Glick, is the only person authorized and
designated to comment on Company policies or any event that
may affect our organization.
(b) In any like or related manner interfering with, restraining,
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 effectu-
ate the policies of the Act.
(a) Rescind the unlawful rules as set forth above.
(b) Furnish employees with inserts to its LA & SF Specialty
Employee Manual regarding Confidentiality & Non-Disclosure
and Media Contact rules that (1) advise that the unlawful rules
have been rescinded, or (2) provide lawfully worded rules.
(c) Within 14 days after service by the Region, post at its
Hayward, California facility, copies of the attached notice
marked “Appendix.”9 Copies of the notice, on forms provided by
the Regional Director for Region 32, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper no-
tices, the notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communicates with
its employees 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
pendency of these proceedings, the Respondent has gone out of
business or closed the facility 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 April 13, 2017.
(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. June 28, 2018
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.”
LA SPECIALTY PRODUCE CO. 19
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 the following rules in its LA & SF Spe-
cialty Employee Manual, dated since at least April 13, 2017:
In the Confidentiality & Non-Disclosure rule:
Every employee is responsible for protecting any and all infor-
mation that is used, acquired or added to regarding matters that
are confidential and proprietary of [Respondent] including but
not limited to client/vendor lists,
In the Media Contact rule:
Employees approached for interview and/or comments by the
news media, cannot provide them with any information. Our
President, Michael Glick, is the only person authorized and
designated to comment on Company policies or any event that
may affect our organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL rescind/revise the unlawful rules listed above.
WE WILL furnish you with inserts for the LA & SF Specialty
Employee Manual regarding the “Confidentiality & Non-Disclo-
sure “and “Media Contact” rules, dated since at least April 13,
2017, that (1) advise that the unlawful rules have been rescinded,
or (2) provide lawfully worded rules.
LA SPECIALTY PRODUCE COMPANY
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/ 32–CA–207919 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.