NLRB Judge Strikes Down Confidentiality Policy

Kollman & Saucier
Kollman & Saucier

Over the past year, we’ve seen a lot of NLRB rulings and guidance limiting the rights of employers to regulate non-union employees. While social media rulings have drawn most of the attention, the Board has also tried to limit employers’ rights to issue work rules, maintain the confidentiality of workplace investigations, and  make employees aware of the at-will nature of their employment relationship.  On June 4, 2013, an NLRB Administrative Law Judge  (“ALJ”) continued the assault  on the non-union workplace by ruling that a Red Cross confidentiality policy was overbroad and could be read to discourage the exercise of employee Section 7 rights under the National Labor Relations Act. American Red Cross Blood Services, Case No. 08-CA-09132.

In the Red Cross case, it was a combination of policies that was deemed to run afoul of the NLRA. First, the employer’s “Confidential Information and Intellectual Property Agreement” told employees that they could not disclose information related to “personnel,” “employees,” and “all information  not generally known outside of Red Cross regarding its business.”  The employer’s handbook and code of conduct also prohibited the disclosure of confidential information by employees.   The ALJ ruled that these policies violated §8(a)(1) because employees could reasonably read them to prohibit the discussion of wages and other terms and conditions of employment with co-workers and third parties, including union representatives.

The ALJ rejected the employer’s argument that a “savings clause” made the language legal.  The savings clause said: “[T]his Agreement does not deny any rights provided under the National Labor Relations Act to engage in concerted activity, including but not limited to collective bargaining.” The ALJ found that employees don’t necessarily know that the NLRA protects their right to discuss wages and working conditions with outsiders, so the savings clause was not effective.

The take away for employers, once again, is that policies need to be narrowly tailored in order to pass muster with the current NLRB.  If an employee arguably could read a rule to prohibit him or her from discussing their wages, hours, and working conditions with others, than the rule will probably be found to violate §8(a)(1). Based on our reading of the Board authorities that have issued in the past 18 to 24 months, an employer’s best chance of getting a rule past the NLRB is to include specific examples of the types of behavior that is impermissible.

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