Nicholson Terminal & Dock Company

National Labor Relations Board - Administrative Judge Opinions

May 16, 2018

07-CA-187907 (N.L.R.B. May. 16, 2018)

JD–30–18
Detroit, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NICHOLSON TERMINAL & DOCK
COMPANY
and Case 07–CA–187907
STEVE LAVENDER, an Individual
Renée D. McKinney, Esq., for the General Counsel.
Steven H. Schwartz, Esq. and Chelsea Ditz, Esq.
(Keller Thomas, PC), for the Respondent.
DECISION
STATEMENT OF THE CASE
ELIZABETH M. TAFE, Administrative Law Judge. This case was tried in Detroit,
Michigan, on July 27, 2017, following the issuance of the complaint by the Regional Director of
Region 7 on April 13, 2017. The complaint alleged that the Respondent, Nicholas Terminal &
Dock Company, violated Section 8(a)(1) of the Act by maintaining certain work rules contained
in its Personnel Handbook. The Respondent timely answered the complaint, admitting
maintenance of the contested rules but denying all wrongdoing.
The parties were given a full opportunity to participate in the hearing, to introduce
relevant evidence, to call, examine, and cross-examine witnesses, and to file briefs and
supplemental briefs.1 On the entire record, including my observations of the demeanor

1 At the hearing, I granted the General Counsel’s motion to amend the complaint to withdraw the
allegation that the Respondent’s Personnel Handbook Rule II.A(17) (regarding posting notices) violates
the Act. I also granted the General Counsel’s motion to correct and renumber original complaint pars. 6 to
8 to become corrected pars. 5 to 7, due to an apparent typographical error. On December 14, 2017, the
Board issued its decision in The Boeing Company, 365 NLRB No. 154 (2017), which made retroactive
the application of a new legal standard to pending cases alleging that facially neutral workplace rules are
unlawful. The parties were granted the opportunity to identify any need to supplement the record and to
file supplemental briefs. Both the Respondent and the General Counsel opined that the record was
complete without reopening the record, and both filed supplemental legal briefs. The Charging Party did
not file briefs. During supplemental briefing, I granted the General Counsel’s unopposed motion to
withdraw complaint allegations regarding the following handbook rules: (1) Rule II.A(26): Failing to
maintain confidential Company or vendor information; (2) Rule III.L: Trade Secrets and Confidential
Information; and (3) Rule III.N: Dress Code. The rules that remain in dispute are identified in corrected
par. 5 of the complaint, and described in detail below.
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2
of the witnesses, and after fully considering the briefs and supplemental briefs filed by the
Respondent and the General Counsel, I make the following findings, conclusions, and
recommendations.
FINDINGS OF FACT
5
I. JURISDICTION
The Respondent, a corporation, engages in the business of handling marine cargo at its
facilities in Detroit, Michigan and Ecorse, Michigan (the Detroit and Ecorse facilities,
respectively). Annually, in conducting its operations the Respondent purchased and received at 10
its Detroit and Ecorse facilities goods valued in excess $50,000 directly from points outside of
the State of Michigan. The 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.
II. ALLEGED UNFAIR LABOR PRACTICES15
Factual Background
The Respondent operates a commercial dock that processes cargo, and loads, and unloads
cargo to/from ships. The Respondent employs about 46 employees at its two sites, the Detroit 20
and Ecorse facilities, which include employees who perform stevedoring, hi-lo or crane
operations, and mechanical repairs2 and who are represented by the International Association of
Machinists Local Lodge 698 (IAM) (herein referred to as the material handlers/stevedores or unit
employees).3 The employer also employs four office clerical employees who are admitted to be
statutory employees but who are not represented by a union (clerical or nonunit employees), and 25
various supervisors, the treasurer, and the president. The material handlers/stevedores have been
covered by successive collective-bargaining agreements (CBAs), the current agreement in effect
from February 1, 2017 to January 31, 2020 (R. Exh. 1) and the most recent previous agreement
in effect from February 1, 2014 to January 31, 2020 (R. Exh. 2). The IAM or the Ship Workers
Union, which historically merged with the IAM, has represented the material handlers/stevedores 30
since at least the 1970s.
The Respondent maintains work rules set forth in a Personnel Handbook (Jt. Exh. 1).
The most recent handbook has been in effect since September 1, 2016 and copies were
distributed to all employees around that date (Jt. Exh. 1, Tr. 22).4 The Personnel Handbook is a 35
21-page document that organizes rules in three general sections: I. General Provisions (2 pages),
II. Guidelines for Appropriate Conduct (2 pages), and III. General Company Policies (15 pages).
It also contains an introduction page, an acknowledgement page, and an Attachment A: Email
and Voice Mail Employee Acknowledgment Form. The complaint alleges that certain
provisions of the Guidelines for Appropriate Conduct, General Company Policies, and 40

2 The job titles of employees represented by the IAM are listed in the current CBA. (R. Exh. 1,
Appendix A, p. 34).
3 The IAM is not a party to this case.
4 A prior version of the handbook was promulgated in 2013. The General Counsel does not allege
that rules in the prior handbook are unlawful.
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3
Attachment A contain unlawful work rules. The contested rules, which I will analyze in detail
below, restrict or prohibit conduct related to: (1) strikes and work stoppages; (2) the use of
computer and electronic equipment, including work email; (3) the use of personal recording
equipment and cell phones at work; and (4) outside work or “moonlighting.”
5
When the current CBA was negotiated, the parties agreed to language that refers to the
Personnel Handbook issued on September 1, 2016 (R. Exh. 1, p. 1; Tr. 31–32, 62–64). The
current CBA contains a grievance/arbitration provision that leads to binding arbitration and a
management rights retention clause that permits discipline for cause and that permits the
Respondent to “adopt, revise, and enforce working rules . . . .” (R. Exh. 1, pp. 21–22, 29–30). 10
There does not appear to have been discussion or objection to the Personnel Handbook during
contract negotiations and no grievance has been filed by the IAM regarding the handbook. (Tr.
33, 51, 63.) No employees have been disciplined pursuant to the rules in the Personnel
Handbook. (Tr. 50.)
15
The General Counsel alleges that the contested handbook rules, maintained by the
Respondent and in effect since about September 1, 2016, are “facially unlawful” because they
are overly broad and would reasonably tend to chill employees in the exercise of their Section 7
rights, in that the impact of the rules on NLRA rights is not outweighed by the Respondent’s
legitimate justifications for the rules. See Boeing, below. The Respondent asserts that the rules 20
do not implicate Section 7 rights, and, to the extent they are found to do, the impact on NLRA
rights is outweighed by the Respondent’s legitimate justifications for the rules. Id. The
Respondent also defends the rules by asserting that the Personnel Handbook was negotiated and
incorporated into its CBA with IAM covering its material handlers/stevedores employees, the
rules have not been applied to discipline any employees (unit or nonunit employees),5 and neither 25
the Union nor employees have challenged the legitimacy of the rules.
ANALYSIS
A. Legal Framework30
An employer violates Section 8(a)(1) of the Act when it maintains workplace rules or
policies that would reasonably tend to chill employees in the exercise of their Section 7 rights.
See Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). This
applies to workplace rules found in employee personnel handbooks like those contested in this 35
case. The Board has long-held that the mere maintenance of unlawful rules may violate the Act
without regard for whether the employer ever applied the rule for unlawful purposes. Rio All-
Suites Hotel & Casino, 362 NLRB No. 190, slip op. at 9 (2015), disfavored in part on other
grounds, Boeing, below, slip op. at 19–20, fn. 89. The analytical framework for assessing
whether the maintenance of workplace rules violates the Act is set forth in Lutheran Heritage 40
Village-Livonia, 343 NLRB 646 (2004), as reformed and overruled in pertinent part by the Board
in The Boeing Company, 365 NLRB No. 154 (2017).6 Under Boeing, the Board confirmed the

5 The complaint only alleges that the rules have been unlawfully maintained; there is no allegation
that the rules have been unlawfully applied.
6 In Boeing, the Board’s analysis regularly refers to having overruled Lutheran Heritage; however, at
fn. 4, the Board defines “Lutheran Heritage” to mean prong 1 of the Lutheran Heritage test, i.e., the
JD–30–18
4
general framework of Lutheran Heritage and left unchanged certain elements of the legal
standards set forth, but expressly overruled the established test for determining when a work rule
that does not explicitly restrict rights protected by the Act (facially neutral rule) will be found to
violate Section 8(a)(1). Thus, when evaluating whether a workplace rule is unlawful, the
Board’s inquiry still begins by determining whether “the rule explicitly restricts activities 5
protected by Section 7,” in which case the Board will find the rule unlawful. Lutheran Heritage
at 646 (emphasis in the original); see Boeing, slip op. at 3–4. Similarly, the Board still finds to
be unlawful facially neutral rules that were “promulgated in response to union activity” or
“applied to restrict the exercise of Section 7 rights” Lutheran Heritage at 647; Boeing, slip op. at
7.10
In Boeing, the Board reevaluated its approach to determining when an employer’s mere
maintenance of facially neutral rules will be found to violate the Act. The Board overruled its
prior application of the related holding in Lutheran Heritage where facially neutral rules were
found unlawful when employees “would reasonably construe” the rules to interfere with, coerce 15
or restrain them in the exercise of Section 7 rights. In its place, the Board has established a
“balancing test,” whereby, when evaluating the lawfulness of facially neutral workplace rules the
Board will consider the employer’s justification for the contested rule and weigh that
justification against the potential impact of the rule, as reasonably interpreted, on employees’
Section 7 rights. Boeing, slip op at 3, 15. Thus, when evaluating a facially neutral rule that, 20
when reasonably interpreted, would potentially interfere with NLRA rights, the Board evaluates
two things: (1) the nature and extent of the potential impact of the rule on Section 7 rights, and
(2) legitimate justifications associated with the rule. Id. Focusing on a reasonable interpretation
of the rule from the perspective of employees, the Board endeavors to strike the proper balance
between the invasion of employee rights protected by the Act and the asserted business 25
justifications for the rules.7 Id., slip op. at 15.
In explaining its reasons for developing the Boeing balancing test for considering the
lawfulness of facially neutral rules, the majority in Boeing expressed criticism for the Board’s
prior evaluation of “overly broad” and “ambiguous” rules. Id, slip op. at 2, 9–10, fn. 43, 13, fn. 30
68. These concepts still play a role in the analysis, however, as often rules are deemed facially

“reasonably construe” standard applied to facially neutral rules. Moreover, the reasoning and substantive
discussion in the decision reveals that the rest of the Lutheran Heritage framework remains intact.
7 The Board also described that, as a result of applying this analysis, the Board would “delineate”
three categories of workplace rules through the adjudicative process. Category 1 will include rules
designated as lawful to maintain either because (i) when reasonably interpreted, the rule does not prohibit
or interfere with NLRA rights, or (ii) the potential adverse impact on protected rights is outweighed by
justifications associated with the rule. Category 2 will include rules that warrant individualized scrutiny
regarding whether the rule interferes with NLRA rights and if so, whether the justifications offered
outweigh the rule’s impact on protected conduct. Category 3 will include rules that the Board designates
as unlawful because they would prohibit or limit protected conduct and the adverse impact on protected
rights is not outweighed by justifications for the rule. Boeing, above, slip op. at 3–4, 15. This
categorization system is meant to project clarity in rulings and predictable results, while still considering
real-world complexities and recognizing unique characteristics of different work settings and industries.
Id, slip op. at 10–11, 15–16.
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neutral because their terms are either overly broad or ambiguous. Whether a workplace rule is
overly broad or ambiguous may affect the analysis of both aspects of the balancing test, i.e., the
evaluation of the nature and extent of the potential impact of the rule on NLRA rights and the
legitimate justifications associated with the rule. Ambiguity or over-breadth of terms informs,
but does not determine the lawfulness of work rules. Id. 5
In Purple Communications, Inc., 361 NLRB 1050, 1063 (2014), the Board established a
test to address the particularized circumstance of restrictions imposed on the use of employers’
email systems for employee-to-employee communications. Under the test, the Board presumes
that employees who have the rightful access to their employer’s email systems in the course of 10
their work have a right to use the email system for statutorily protected communications during
nonworking time. An employer may rebut the presumption by showing that special
circumstances necessary to maintain production and discipline justify the restrictions on
employees’ rights. Because limitations should be no more restrictive than is necessary to protect
employer’s interests, the Board emphasized in Purple Communications that it anticipated that 15
special circumstances will rarely justify a total ban on all nonwork email use by employees. Id.
The Board’s reasoning in Purple Communications was based on a consideration of Board and
Supreme Court precedents addressing the accommodation of employer property interests and
employees’ Section 7 rights, and in particular, Republic Aviation, 324 U.S. 793 (1945). The
Board did not rely on the Lutheran Heritage “reasonably construe” standard in Purple 20
Communications, and, therefore, the Board’s determination that the balancing of the important
interests raised by the limitation of employees’ use of employer’s email systems for employee-
to-employee communication should be resolved with the legal presumption established in Purple
Communications is not directly affected by its establishment of the Boeing balancing test in
considering the lawfulness of facially neutral rules. 25
B. Do the Contested Rules Violate Section 8(a)(1)?
For the reasons discussed below, I find that the Respondent’s maintenance of the
contested workplace rules found in the Respondent’s Personnel Handbook concerning strikes 30
and work stoppages, the use of computers and electronic equipment for work email, and outside
work or “moonlighting” violate Section 8(a)(1).8 I further find that the Respondent’s
maintenance of work rules prohibiting the use of cameras and recording equipment does not
violate Section 8(a)(1) based on the standards and findings in Boeing, and that allegation will be
dismissed. 35
1. Alleged unlawful limitations on employees’ right to strike (Rule II.A.16)
In the Personnel Handbook section entitled, “II. Guidelines for Appropriate Conduct,”
subsection A states the following:
40
As an integral member of the Company’s team, you are expected to accept
certain responsibilities, adhere to acceptable business principles in matters

8 Par. 5 (formerly par. 6) of the complaint lists the handbook provisions alleged to be unlawful.
Although the complaint quotes the rules, it does not number them. I have organized them by issue below
and will refer to them by their section/subsection numbers as set forth Jt. Exh. 1.
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of personal conduct, and exhibit a high degree of personal integrity at all
times.
Whether you are on duty or off, your conduct reflects on the Company.
You are, consequently, encouraged to observe the highest standards of 5
professionalism at all times.
Types of behavior and conduct that the Company considers
inappropriate include,9 but are not limited to the following:
(Jt. Exh. 1 at 3)10
Subsection A then lists and describes 27 instances of proscribed conduct, including, at number
16:
Calling, participating, or encouraging others to call or participate in
an illegal slowdown, strike (including a sympathy strike), or walkout. 15
(Jt. Exh. 1 at 4)
I find that this “no-striking” rule is unlawful on its face, because it explicitly restricts
activity protected by the Act, and would, therefore, reasonably tend to chill the exercise of
Section 7 rights. Lafayette Park Hotel, above at 825; Lutheran Heritage, above at 646. The20
Boeing balancing test, which is applied to facially neutral rules, is not implicated by this no-
striking rule that explicitly restricts protected activity. See Boeing, above, slip op. at 7.
Employees’ right to strike is a fundamental right protected by the Act; whether participation in a
strike will be protected by the Act based on its purpose, the conditions or context, notice
requirements, contractual limitations, or other issues, and whether the call of a strike can be 25
found to be unlawful are legally complex, fact-specific issues not made clear to employees in this
rule. Although the rule is overly broad in that it restricts some activity for which the Respondent
would be entitled to discipline employees under certain factual circumstances, it also implicates
strikes, protests, or work stoppages that would be lawful and protected under the Act. The
placement of the qualifier “illegal” before “slowdown” does not save the rule, because it remains30
ambiguous how that qualifier is meant to affect the terms “strike” and “walkout” as written, and,
as discussed above, the term “illegal” itself is ambiguous in the context of describing a job
action.
The Respondent’s argument that the rule merely restates a no-strike provision of the 35
collective-bargaining agreement, which covers the material handlers/stevedores unit, fails for at
least three reasons: (1) the rule covers nonunit statutory employees as well as unit employees and
the CBA does not, so any contractual waivers that may be found in the CBA cannot eliminate the
unlawful effect of the rule; (2) there is no indication and no reason to presume that the rule
would become defunct upon expiration of the CBA, and so it extends to unit employees even 40
under the Respondent’s theory; and (3) the right of employees to engage in protests, including

9 In these quoted sections of the employer’s Personnel Handbook, the language alleged
to be unlawful in the complaint is in bold, except where noted that bolding is in the original.
Additional handbook language is provided for relevant context.
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strikes, when confronted by unfair labor practices is not waived by a contractual, no-strike
clause. Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 284 (1956).
Therefore, I find that the Respondent has been violating Section 8(a)(1) by maintaining
the limitations on the right to strike in its no-striking rule, as described in Personnel Handbook 5
Rule II.A.16.
2. Alleged unlawful restrictions on use of electronic equipment and recording
devices (Rules III.Q, III.X.1, and rules in Attachment A)
10
Subsection Q, of the Personnel Handbook section entitled, “III. General Company
Policies” states, inter alia, the following:
Computer Software Communications
All computers and software are owned or licensed by the Company. 15
Therefore, access to them is restricted to employees of the Company.
Any data created or transmitted via the Company’s computers or
through the use of the company’s software is the property of the
Company. Communications are expected to be professional and for
business purposes only, and messages can and will be monitored 20
periodically. Thus, employees may not expect their communications
are private. (Jt. Exh. 1 at 10)
Subsection X, of the Personnel Handbook section entitled, “III. General Company
Policies” states, inter alia, the following:25
Electronic Equipment Use
The Company has a strict policy relating to the use of electronic
equipment on Company property. Please take note of the rules as it
relates to specific electronic equipment listed below:30
1) Cameras, video recorders or any audio or visual recording
equipment is strictly forbidden at all times, without prior
permission from Company management. Cell phones with
cameras as standard equipment are allowed but may not be 35
used as a camera or recorder while on duty or on Company
premises.
2) Employees working on the terminal property may have Mobile
(cell) phones in operation while on the job, unless a safety risk is 40
created thereby. Employees may use Mobile (cell) phones during
lunch periods and break times, when they have removed
themselves from the working areas of the facility, such as the
locker room.
45
3) Personal audio devices, such as iPods, MP3 players, and portable
radios are prohibited. Employees working on the terminal property
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cannot have these devices in operation while on the job.
Employees may use these devices during lunch periods and break
times, only if they have removed themselves from the working
areas of the facility, such as the locker room.
5
If any such devises are found in use in the working areas of the facility
they may be confiscated. (bold in original)(Jt. Exh. 1 at 18)
Attachment A to the Personnel Handbook, entitled, E-Mail and Voice Mail Employee
Acknowledgement Form, states, inter alia, the following:10
I understand that all electronic communications systems provided for
. . . by the Company . . . are to be used solely for job-related purposes
and not for personal purposes. . . .I further agree not to use the
camera feature of a cell phone while on Company premises.15
(Jt. Exh. 1 at 21)
The Respondent’s handbook rules restricting the use of employer supplied email and the
use of electronic recording equipment, including cellphones, overlap somewhat in how they are
presented in the Personnel Handbook, including that they both appear in the Appendix A, which 20
is formulated as an employee acknowledgement form. The Board has analyzed the lawfulness of
both types of rules, but has established distinct approaches to each type in Purple
Communications, above, and Boeing, above. Therefore, I analyze the Respondent’s “no
nonwork use of email” and “no-camera/no- recording” rules separately.
25
(a) “No nonwork use of email” rule
Regarding the Respondent’s restrictions on the use of email as outlined in Rule III.Q and
Appendix A, I find that the rule is unlawful. Under the Board’s precedent in Purple
Communications, the Respondent may not completely restrict the use of its email system for 30
statutory communication by employees who have been granted access to the email system for
work purposes absent a showing of special circumstances that justify such a bar. Here, the
Respondent has provided no evidence or argument of special circumstances, other than its
property interest in the email system and its generalized need for productivity and discipline.
However, the Board’s reasoning in Purple Communications already takes into consideration an 35
employer’s general property interest in its email system and need for productivity and discipline,
and here, the Respondent has not established that these interests constitute a special
circumstance. The Respondent’s argument that it is entitled to restrict the use of email because
the material handlers/stevedores unit employees are not granted access to email as part of their
work does not account for the fact that nonunit statutory employees are granted access to the 40
Respondent’s email system. Therefore, the rule is unlawful because it applies to the nonunit
statutory employees. Thus, although pursuant to Purple Communications, the Board does not
require the Respondent to permit the use of email to those employees not granted access to its
email system for work purposes, this handbook rule is unlawfully overbroad in that it also limits
the use of email for protected communications among employees who have been granted use of 45
the email system for use in the course of their work.
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I find that the Respondent has been violating Section 8(a)(1) by maintaining its
prohibition of nonwork use of its email system as described in its Personnel Handbook at Rule
III.Q and Appendix A.
(b) “No-camera/no-recording” rule5
Regarding the Respondent’s no-camera/no-recording rule, the Board’s legal standards in
Boeing apply. In addition to the balancing test established in Boeing to determine the lawfulness
of employer rules, policies, and handbook provisions, the Board explained that, after applying
the balancing test in each case, it would delineate categories of rules by assigning its findings to 10
one of three categories. The Board explained that it expected by assigning rules to these
categories, it would provide certainty and clarity. Id., slip op. at 10–11, 14–15. In setting up this
classification scheme, however, the Board did not define the categories as creating “per se”
determinations, legal presumptions (rebuttable or otherwise), or evidentiary burden shifting,
which, of course, the Board could have explicitly done. Therefore, I read the Board’s 15
categorization of the outcomes of its rulings related to work rules established in Boeing and
subsequent cases to develop guidance in future cases, i.e., an indication of how the Board will
expect to address a rule or type of rule, absent a considerably distinct factual context, rather than
per se determinations or legal presumptions. I read Boeing to instruct that, if the Board has
determined that a type of rule falls into either Category 1 (lawful) or Category 3 (unlawful), rules 20
of that type will likely be found lawful or unlawful, respectively, in future cases. I read Boeing
to instruct that, if the Board determines that a type of rule falls into Category 2, it expects to
highly scrutinize the rule, and anticipates that specific circumstances will likely affect the
outcome of its application of the Boeing balancing test to similar rules or rules of that type
falling into that category. In any case, I read Boeing to require me to apply the balancing test in 25
every case, even if the Board has already addressed a similar rule or similar type of rule and has
assigned the similar rule to either Category 1 or 3, with the above guidance in mind.
In Boeing, the Board determined that Boeing’s no-camera rule was lawful, because
Boeing’s justifications for its restrictions on the use of camera-related devices on its property 30
outweighed the rule’s more limited adverse effect on the exercise of Section 7 rights. Boeing,
above, slip op. at 5. The Board balanced its finding that the potential adverse impact on
employees Section 7 rights was comparatively slight, against Boeing’s multiple justifications for
the rule. Boeing justified its no-camera rule based on the rule’s roles of: (a) being an integral part
of the Boeing’s security protocol, (b) in ensuring compliance with government confidentiality 35
requirements, (c) in the protection of Boeing’s proprietary information, (d) in the protection of
employees’ personally identifiable information, and (e) in limiting the risk of Boeing being a
terrorist target. Id., slip op. at 19–20. The Board further determined that “[a]lthough the
justifications associated with Boeing’s no-camera rule were compelling, [the Board believed]
that no-camera rules, in general, fall into Category 1, types of rules that the Board will find 40
lawful . . . .” Id., slip op. at 17. Therefore, the Board has provided the guidance that, in general,
it expects to find no-camera rules lawful.
As discussed below, after applying the Boeing test, and considering the Board’s
expressed guidance regarding no-camera rules, I find that the Respondent’s no-camera/no-45
recording rule in this case is lawful, and I recommend the related complaint allegation be
dismissed.
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Respondent’s Handbook Rule III.X.1 states, in relevant part, “Cameras, video recorders
or any audio or visual recording equipment is strictly forbidden at all times, without prior
permission from Company management. Cell phones with cameras as standard equipment are
allowed but may not be used as a camera or recorder while on duty or on Company premises.” 5
Appendix A states, in relevant part, “I further agree not to use the camera feature of a cell phone
while on Company premises.” These are facially neutral rule provisions, in that they do not
explicitly implicate Section 7 rights, but when reasonably read from an employee’s perspective,
would potentially interfere with the Section 7 rights to record and/or publish recordings of
Section 7 activities, such as certain group protests, evidence of safety violations, or organizing 10
activity, without the Respondent’s prior permission. The rule is vague and overbroad in that it
does not distinguish between activities on nonwork time, or nonwork areas of the Respondent’s
premises. The rule also may have some impact on employees’ lawful collection of information
about the identities of coworkers or customers, or the lawful collection of information about
safety violations or CBA violations. When evaluating a facially neutral rule that, when 15
reasonably interpreted, would potentially interfere with NLRA rights, the Board evaluates two
things: (1) the nature and extent of the potential impact of the rule on Section 7 rights, and (2)
legitimate justifications associated with the rule. Boeing, above, slip op. at 3, 14. In balancing
these interests, the Board focuses on a reasonable interpretation of the rule from the perspective
of employees. Id. Here, the record does not establish that the nature or extent of the potential 20
impact of the rule on Section 7 rights would be distinct from that in Boeing, and therefore,
considered with the Board’s finding in Boeing, I conclude that the nature and extent of the rule’s
impact on Section 7 rights is slight.
The Respondent’s legitimate justifications for the no-camera/no-recording rule provisions 25
in this case, however, are distinct from those offered in Boeing. In this case, the Respondent
provided very little substantive justification for its no-camera/no-recording rule. On the stand,
the Respondent’s treasurer and manager, Patrick Sutka, testified that the reason for the rule was
“for safety purposes” and explained that the Respondent did not want their employees in the field
distracted while at work. (Tr. 48.) This reasoning does not adequately explain the no-30
camera/no-recording rule, however, as the cell-phone use and Ipod/MP3 player use limitations
(rules III.X.2 and III.X.3) are less strict, more tailored, and implicate similar potential safety
issues due to distraction. The rule also applies equally to employees when they do not work in
the field. Moreover, the Respondent concedes in its briefs that employees may take handwritten
notes about safety or work-related issues, which I find counter-intuitive, as there is no reason to 35
believe that taking handwritten notes would be less distracting than taking pictures or making
recordings.
In its briefs, the Respondent further asserts that security concerns related to its OSHA and
Homeland Security obligations are also reasons justifying the no-camera/no-recording rule and 40
offered that the no-camera/no-recording rule addressed Respondent’s concerns regarding
disclosure of confidential and proprietary business and customer information. Although no
witness or documentary evidence established an assertion that security or confidentiality
concerns were reasons for maintaining these rule provisions, Sutka testified that the Respondent
was concerned about confidentiality and proprietary protection, as well as security issues related 45
to the Respondent’s function as a port. Based on the above, I find that the Respondent has
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asserted some legitimate reasons for the no-camera/no-recording rule provisions, although, the
record does not fully establish that those reasons were the actual reasons for maintaining the rule.
The General Counsel argues that I should not consider justifications for rules not offered
by the Respondent on the record, particularly considering that the Respondent was provided and 5
declined an opportunity to supplement the record following the issuance of the Boeing decision.
In Boeing, the Board explained that sometimes the Board would consider that a work rule’s
impact on Section 7 rights and/or its justification is self-evident. I rely on the Respondent’s legal
reasoning on brief to infer from the record that security concerns related to Respondent’s port
operation and protection of confidential and proprietary customer and business information are 10
legitimate justifications for the rule, because they are plausible based on the record and
considering the nature of the business and similar justifications were found legitimate by the
Board in Boeing. Based on the above, and considering the Board’s guidance in Boeing that no-
camera rules, in general, will likely be found lawful, I find that the Respondent’s no-camera/no-
recording rule, like the rule in Boeing, has a comparatively slight impact on Section 7 rights, and 15
that the slight impact on Section 7 rights is outweighed by the Respondent’s asserted justification
for the rule provisions.10
The General Counsel also argues that the Respondent’s reasons for the rules should be
disregarded to the extent they were not explained to employees. In Boeing, the Board did not 20
address whether the reasons for the rules must be explained to employees or what effect not
explaining the reasons would have on the Boeing balancing test. In certain circumstances,
explaining the reasons for a rule might diminish its coercive effect, and therefore, whether
employees had notice of the reasons for the rules would be a relevant consideration. Here,
however, where I have relied on the Board’s ruling in Boeing to determine that the no-25
camera/no-recording rule provisions have only a slight impact on Section 7 rights, the lack of
notice to employees of the reasons for the rule provisions does not affect the outcome of the
application of the Boeing balancing test.
30

10 The Board’s categorization of this type of rule as “Category 1,” a rule that it would likely find
lawful, tipped the scales in my reasoning when applying the Boeing balancing test to this work rule. In the
absence of the Board’s guidance in Boeing that, in general, it expects to find no-camera rules lawful, my
conclusion would have been different. Here, the Respondent’s proffered reasons are based on weak
evidence and asserted posthoc reasoning from which I have inferred some legitimate justifications for the
rule. These justifications are somewhat similar in type to those established in Boeing but not substantiated
in the record to a comparable extent. Even considering that the Board determined in Boeing that the
potential impact on Sec. 7 rights of a no-camera rule is slight, presented with only weak evidence of
legitimate justifications for the rule in this case, I would have found that the Respondent’s proffered
justifications do not outweigh the potential impact on Sec. 7 rights in this case, had the Board not
instructed that no-camera rules, in general, would be found lawful.
JD–30–18
12
3. Alleged unlawful limitations on outside work
Subsection V, of the Personnel Handbook section entitled, “III. General Company
Policies” states, inter alia, the following:
5
Moonlighting
Employees are expected to devote their primary work efforts to the
Company’s business. Therefore, it is mandatory that they do not have
another job that:10
▪ Could be inconsistent with the Company’s interests.
▪ Could have a detrimental impact on Company’s image with
customers or the public.
▪ Could require devoting such time and effort that the employee’s work 15
would be adversely affected.
Before obtaining any other employment, you must first get approval
from the Company Treasurer. Any change in this additional job must
also be reported to the Company Treasurer. (Jt. Exh. 1 at 17)20
The Respondent’s “no moonlighting without permission” rule is a facially neutral rule, in
that it does not explicitly implicate Section 7 rights, but, when reasonably read from the
perspective of employees, it would have some potential impact on employees’ Section 7 rights to
organize, to associate with other employees, and to affiliate with and work for unions, without 25
their employer’s knowledge or interference. 11 Therefore, the Boeing balancing test applies, and
the question presented is whether the potential impact on NLRA rights is outweighed by the
employer’s legitimate justifications for the rule.12 As discussed below, I find that the

11 On brief, the General Counsel urges me to rely on several cases decided by the Board pursuant to
the Lutheran Heritage “reasonably construe” standard, because, he argues, the Board stated in Boeing that
it was not passing on the legality of past decisions not referenced in Boeing, but would leave to future
cases the legality of such rules pursuant to the principles stated in Boeing. GC Brief at 3, fn. 2; Boeing,
above, slip op. at 12, fn. 51. I disagree with the General Counsel to the extent he suggests that these cases
remain reliable precedent regarding the ultimate question of lawfulness of the rules after Boeing.
However, these cases continue to support the narrower question in the Boeing balancing test regarding
whether the contested rules have been shown to have a potential impact on Section 7 rights, and continue
to lend insight regarding the nature and extent of that impact. See, e.g., Schwan Homes Services, Inc., 364
NLRB No. 20, slip op. at 5 (2016) (restrictions on “conduct detrimental to the best interests of the
company or its employees,” found unlawful); First Transit, Inc., 360 NLRB 619, 619-620, fn. 5 (2014)
(rule that includes restrictions on “activities that are detrimental to the company’s image or reputation, or
where a conflict of interest exists” and conduct during nonworking hours that “would be detrimental to
the interest or reputation” of the employer found unlawful); and Sheraton Anchorage, 362 NLRB No.
123, slip op. at 1-2, fn. 4 (2015) (rules prohibiting “conflict of interest with the hotel or company” or
behavior that, inter alia, “publicly embarrasses the hotel” found unlawful). These cases support my
determination that the “no moonlighting” rule in this case, when reasonably interpreted, potentially
impacts Section 7 rights.
12 The Board has not yet ruled on into which category “no moonlighting without permission” rule will
belong, and the categorization system of the Boeing decision does not impact my analysis of this rule.
JD–30–18
13
Respondent’s justifications for this rule do not outweigh the potential impact on Section 7 rights,
and therefore, the rule is unlawful.
The rights of employees to engage in organizing activities, to associate with other
employees for mutual aid or protection, and to affiliate with and/or work for any union are core 5
rights under Section 7 of the Act. Although an employer can expect employees to devote their
working time to the employer’s business, this rule’s restrictions on moonlighting by definition
affects and interferes with nonwork time. When engaging in organizing efforts, including salting
or dissenting union efforts as well as efforts supporting a recognized union in a labor dispute,
employees may participate in efforts that “could be inconsistent with the [employer’s] interests” 10
or that “could have a detrimental impact” on the employer’s image with customers or the public.
Moreover, requiring employees to get management’s preapproval before engaging in Section 7
activities is particularly coercive and would tend to chill that activity. See, e.g., Lily
Transportation Corp., 364 NLRB No. 54, slip op. at 1, 6 (Board affirms administrative law
judge’s reasoning without discussion, including that the mere fact that employees must seek 15
permission to engage in protected conduct would have a chilling effect on Sec. 7 rights). I find
that the Respondent’s “no moonlighting without permission” rule has a significant potential
impact on substantial, core Section 7 activities.
The Respondent justifies this rule by stating that (1) the Respondent requires employees 20
to be alert and attentive at work as their work can be dangerous, suggesting that moonlighting
will increase risk for fatigue; and (2) the Respondent does not want employees working for its
competitors. Although these reasons are legitimate justifications on their face, I find that they
are not sufficiently addressed by the rule alleged to be unlawful in this case to outweigh the
substantial impact the rule has on Section 7 rights. Significantly, the provision that makes it 25
“mandatory that employees do not have another job” that “[C]ould require devoting such time
and effort that the employee’s work would be adversely affected” is not alleged to be unlawful.
This provision addresses the Respondent’s asserted concern about potential lack of attention or
fatigue caused by moonlighting. The contested provisions regarding an employee engaging in
outside work that potentially conflicts with the Respondent’s interests or that might negatively 30
affect the Respondent’s image are simply not addressed by the justification that employees must
be alert and not fatigued at work. The Respondent’s assertion that its interest in preventing
employees from working for its competitors is not fully explained, but presumably this would be
related to an interest in keeping proprietary information from competitors. This is a legitimate
interest, but one that could be addressed with a better tailored rule, and one that does not 35
outweigh the employees’ substantial, core NLRA rights to organize, associate, and affiliate with
other employees and participate in union activity on nonwork time without their employer’s
interference.
The Respondent argues that the rule should be found lawful because the CBA recognizes 40
that employees are permitted to work for the IAM and grants leave to do so under certain
circumstances, arguing that employees would not reasonably read the moonlighting restrictions
to affect their Section 7 rights. This argument fails because, as I discussed above, there are
statutory employees at both the Detroit and Ecorse facilities who are not represented by IAM and
there is no reason to assume that the handbook rules do not apply to unit employees upon the 45
expiration of the CBA. The Respondent’s argument that the rule does not significantly affect
Section 7 rights because the employees are already organized by IAM fails for similar reasons.
JD–30–18
14
Moreover, the Respondent’s argument that it would not apply the rule to disapprove an
employee’s request to work for IAM in his/her nonwork time is immaterial; the need to request
authorization is coercive itself.
Based on the above, I find that the Respondent’s prohibitions and restrictions on 5
moonlighting are unlawful, because the proffered justifications for the work rule do not outweigh
the significant potential impact of the rule on substantial, core Section 7 rights. The Respondent
has been violating Section 8(a)(1) by maintaining limitations on employees’ rights to organize,
associate with other employees, and affiliate with unions on nonwork time in the Respondent’s
restrictions on employees’ ability to work for other employers, as described in Personnel 10
Handbook Rule III.V. This type of rule should be found to be a Category 3 rule, in that the rule
significantly impacts substantial, core Section 7 rights, and this significant impact will not
generally be outweighed by justifications associated with the rule.
CONCLUSIONS OF LAW
15
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Respondent has violated Section 8(a)(1) of the Act by maintaining work rules that
would reasonably tend to chill employees in the exercise of their Section 7 rights either by 20
expressly prohibiting or restraining the exercise of NLRA rights, or by potentially impacting the
exercise of those rights and the justifications for the work rules do not outweigh the potential
impact on Section 7 rights; specifically, the Respondent has been violating the Act by
maintaining the following rule provisions in its Personnel Handbook:
25
(a) restrictions on employees’ right to strike, as described in the Personnel Handbook at
Rule II.A.16;
(b) restrictions on employees’ right to use the Respondent’s email system, as described in
the Personnel Handbook at Rule III.Q and Appendix A; 30
(c) restrictions on employees’ ability to engage in outside work activities, as described in
the Personnel Handbook at Rule III.V.
3. The above unfair labor practices affect commerce within the meaning of Section 2(6) 35
and (7) of the Act.
4. The Respondent did not violate the Act in any other manner alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall 40
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act. Having found that the Respondent maintains unlawful rules in its
Personnel Handbook, the Respondent is required to revise or rescind the unlawful rules in all
forms. This is the standard remedy to assure that employees may engage in protected activity
JD–30–18
15
without fear of being subjected to an unlawful rule. See Guardsmark, LLC, 344 NLRB 809, 812
(2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir. 2007). As stated there, the Respondent
may comply with the order of rescission by reprinting the Personnel Handbook and its Appendix
without the unlawful language or, in order to save the expense of reprinting the documents, it
may supply its employees inserts stating that the unlawful rules have been rescinded or with 5
lawfully worded rules on adhesive backing that will correct or cover the unlawfully broad rules,
until it republishes documents without the unlawful provisions. Any copies that include the
unlawful rules must include the inserts before being distributed to employees. Id. at 812 fn. 8.
See also Hills & Dales General Hospital, 360 NLRB 611, 613 (2014) and Rio All-Suites Hotel,
362 NLRB No. 190, slip op. at 6 (2015). 10

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended13
ORDER
15
The Respondent, Nicholson Terminal & Dock Company, Detroit, Michigan and Ecorse,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
20
(a) Maintaining rules, policies, or handbook provisions that either expressly prohibit and
restrain employees in the exercise of Section 7 rights, or that potentially impact Section 7 rights
and about which the rule’s legitimate justifications do not outweigh the impact on the exercise of
Section 7 rights; specifically, maintaining the following work rules:
25
(i) restrictions on employees’ right to strike, as described in the Personnel Handbook at
Rule II.A.16;
(ii) restrictions on employees’ right to use the Respondent’s email system, as described in
the Personnel Handbook at Rule III.Q and Appendix A; 30
(iii) restrictions on employees’ ability to engage in outside work activities, as described in
the Personnel Handbook at Rule III.V.
(b) In any like or related manner interfering with, coercing, or restraining employees in 35
the exercise of the rights guaranteed them by the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the work rule provisions set forth in paragraph 1(a), above, or revise them to 40
remove any language that prohibits or restrains the exercise of Section 7 rights, or that
potentially impacts Section 7 rights and about which the rule’s justifications do not outweigh the

13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–30–18
16
rule’s impact on Section 7 rights.
(b) Notify all employees that the above rules have been rescinded or, if they have been
revised, provide them a copy of the revised rules.
5
(c) Within 14 days after service by the Region, post at all of its facilities in Detroit,
Michigan and Ecorse, Michigan, copies of the attached notice marked “Appendix.”14 Copies of
the notice, on forms provided by the Regional Director for Region 7 after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are 10
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates with its 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 15
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 employed by the Respondent at any time
September 1, 2016.
20
(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.
25
Dated at Washington, D.C., May 16, 2018
____________________________30
Elizabeth M. Tafe
Administrative Law Judge

14 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.”
JD–30–18
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 behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain work rules, policies, or handbook provisions that either expressly
prohibit or restrain you in the exercise of these rights, or that potentially impact these rights and
about which legitimate justifications do not outweigh the impact on these rights; more
specifically.
WE WILL NOT maintain a work rule that expressly limits your right to strike.
WE WILL NOT maintain a work rule that prohibits your right to use our email system to
communicate with each other about wage, hours, working conditions, and other protected,
concerted communications.
WE WILL NOT maintain a work rule that prohibits you from working for other employers
during nonwork time without our permission.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL rescind the provision in our Personnel Handbook at Rule II.A.16 that expressly limits
your right to strike.
WE WILL rescind the provision in our Personnel Handbook at Rule III.Q and Appendix A that
limits your right to use our email system to communicate with each other about wages, hours,
working conditions, and other protected concerted communications.
WE WILL rescind the provision in our Personnel Handbook at Rule III.V that prohibits your
ability to work for another employer without our permission.
JD–30–18
WE WILL notify all employees that the above rules have been rescinded or, if they have been
revised, provide you a copy of the revised rules.
NICHOLSON TERMINAL & DOCK
COMPANY
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Room 300, Detroit, MI 48226-2543
(313) 226-3200, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/07-CA-187907 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (313) 335-8042.