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How Disruptive Can an Aggressive NLRB Be in a Non-Union Setting? More Than You Might Think

By Michael W. Fox, Esq.

If you are a non-union employer (and overwhelmingly most employers are) you might not have given much thought to your how your confidentiality policy stacked up against the National Labor Relations Act. In fact your policy might read something like the following:

Confidential Information

Employees deal with and have access to information that must stay within the Organization. Confidential Information includes, but is not limited to, information that is related to: our customers, suppliers, distributors; [Company] organization management and marketing processes, plans and ideas, processes and plans, our financial information, including costs, prices; current and future business plans, our computer and software systems and processes; personnel information and documents, and our logos, and art work. No employee is permitted to share this Confidential Information outside the organization, or to remove or make copies of any [Company] records, reports or documents in any form, without prior management approval.Disclosure of Confidential Information could lead to termination, as well as other possible legal action.

But if it does, then according to the NLRB, now buttressed by the 5th Circuit Court of Appeals, you are in violation of the NLRA because that policy infringes on employees Section 7 rights.  Flex Frac Logistics v. NLRB (5th Cir. 3/24/14).

The 5th Circuit review of the Board's decision finding a violation is straightforward:

1. It is a violation of the NLRA to have a workplace rule that forbids discussion of confidential wage information between employees.
   
2. The rule above does not explicitly do that, but it is also a violation if "employees would reasonably construe the language to prohibit Section 7 activity.
   
3. Because the clause covers financial information, including costs, that "necessarily includes wages and thereby reinforces that the rule proscribes wage discussion with outsiders."
   
4. And the rule makes no attempt exclude some personnel information such as wages, which might make it pass muster.

Full post as published by Jottings By An Employer's Lawyer on March 25, 2014 (boomark / email).