NLRB Rulings: More of the Same

As many of you know, I’ve taken some time off from blogging to have a baby. Well, I didn’t give birth, but I was an empathetic husband who gained my share of baby weight. Unfortunately, my wife’s baby weight is coming off quickly in the 3 weeks since the kid was born, but mine is sticking to the ribs – literally.

The NLRB decided against taking a few weeks off to celebrate the birth of my son. Instead, it kept trudging right along rendering anti-company decisions on some of its favorite topics: social media, confidentiality policies, and at-will clauses in handbooks. Here are some of the highlights (lowlights?) from those decisions.

Social Media

A major grocery store’s social media policy violated Section 7 of the National Labor Relations Act because it restricted an employee’s use of non-public information. The employer’s policy stated:

  • You [the employee] have an obligation to protect confidential, non-public information to which you have access in the course of your work. Do not disclose, either externally or to any unauthorized Associate any confidential information about the Company or any related companies…or about other Associates, customers, suppliers, or business partners. If you have questions about what is confidential, ask your manager.
  • Do not use any Company logo, trademark, or graphics, which are proprietary to the Company, or photographs or video of the Company’s premises, processes, operations, or products that have confidential information owned by the Company, unless you have received the Company’s prior written approval.
  • Do not defame or otherwise discredit the Company’s products or services….
  • Please note that the Company will not construe or apply these guidelines in a manner that improperly interferes with or limits employees’ rights under any state or federal laws, including the National Labor Relations Act.

Followers of this blog and members of the Labor Relations meetings I lead for the Human Resource Association of Central Ohio would know that this policy would not pass NLRB muster. First, the policy does not define what is “confidential” or “non-public.” Second, the no-photographing or videotaping clause infringes on an employee’s right to photograph or videotape protected concerted activity, like picketing or a strike, and then sharing the photographs or video with others via social media. Third, and like I said before, the “savings clause” or disclaimer at the end does not matter to the NLRB.

Confidentiality Policies

Quicken Loans – a Detroit company whose owner also owns the Cleveland Cavaliers and the casinos in Cleveland and Cincinnati – required all mortgage bankers to sign an employment agreement containing a confidentiality clause that prohibited the brokers from “publicly criticizing, ridiculing, disparaging or defaming the Company or its products, services, policies, directors, officers, shareholders, or employees, with or through any written or oral statement or image.”

I guess in an attempt to not be vague, the agreement also had a “Proprietary/Confidential Information” section that contained a laundry list of items – including “all personnel lists, rosters, personal information of co-workers” as well as handbooks, personnel files, personnel information such as home phone numbers, cell phone numbers, addresses, and e-mail addresses – employees agreed to hold and maintain “in the strictest of confidence” and not “disclose, reveal or expose.”

A former employee – I wonder if she was “former” by choice – filed an unfair labor charge with the NLRB alleging that the clauses violated the National Labor Relations Act by infringing on her Section 7 rights. As you can imagine, the Board agreed with the former employee. Quicken Loans was required to reprint lawful versions of the agreement, modify its handbook, and post a notice informing employees of their rights under the NLRA.

At-Will Clauses

According to a recent case, traditional “at-will” language is a per se violation of Section 7 of the National Labor Relations Act. The judge specifically held that signing an

acknowledgement form [with at-will language] is essentially a waiver in which an employee agrees that his/her at-will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not, to change his/her at-will status. For all practical purposes, the clause in question premises employment on an employee’s agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would amend, modify, or alter the at-will relationship. Clearly, such a clause would reasonably chill employees who were interested in exercising their Section 7 rights.

Well, I clearly disagree with the judge. Thousands of unions have won thousands of union elections at thousands of companies that had traditional at-will language in their handbooks and clearly, the Section 7 rights of the union proponents were not chilled.

I’m back on track with blogging now that living with an infant is sort of figured out. Now it’s time to get on a different kind of track to get rid of my baby weight.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can always call Matt at 614.843.3041 or email him at Austin@LaborEmploymentOSHA.com

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