The Boeing Company, 365 NLRB No. 155 (2017)

Boeing had a policy restricting the use of camera-enabled devices such as cell phones on its property. Boeing's "no-camera" rule does not explicitly restrict activity protected by Section 7 of the NLRA, it was not adopted in response to NLRA-protected activity, and it has not been applied to restrict such activity. Nevertheless, applying prong one of the test set forth inLutheran Heritage, the NLRB administrative law judge (ALJ) found that Boeing's maintenance of this rule violated the NLRA. The ALJ reasoned that employees "would reasonably construe" the rule to prohibit Section 7 activity, and so it was deemed to be in violation of the Act. Boeing appealed.

Would it make more sense for the NLRB and courts to focus on whether policies have actually been enforced in ways that interfere with activities protected by the NLRA, rather than on the potential for policies to do so? Why or why not?