Employers Beware! The National Labor Relations Act May Affect

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Employers Beware! The National Labor Relations Act

May Affect Your Interest In Protecting Confidential Information

Employers seldom think of the National Labor Relations Act ("NLRA") when drafting employee manuals and confidentiality policies. However, a recent decision by the Court of Appeals for the District of

Columbia Circuit, requires union and non-unionized employers alike to take greater notice. In Cintas Corp. v. NLRB, D.C. Cir. No. 05-1305, 3/16/07, the Court affirmed a National Labor Relations Board decision striking down a seemingly innocuous confidentiality policy as violating its employees' Section 7 rights under the NLRA.

Section 7 of the NLRA guarantees employees the right to form, join or assist labor organizations and to engage in other concerted activities for their mutual aid and protection. Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer to interfere with an employee's exercise of his or her

Section 7 rights. The courts have previously interpreted these provisions to protect an employee's right to discuss the terms and conditions of his or her employment with other employees and non-employees.

Unfortunately, Cintas learned the hard way how far-reaching the protections of Section 7 can be, even in a non-union environment. Cintas enacted a policy addressing how employees are expected to treat confidential information: "We honor confidentiality. We recognize and protect the confidentiality of any information concerning the company, its business plans, its partners [the term Cintas uses to refer to its employees], new business efforts, customers, accounting and financial matters."

During early-2003 Cintas was experiencing organizing campaigns by the Union of Needletrades,

Industrial and Textile Employees (UNITE) at its Bedford Park, Illinois and Central Islip, New York facilities. During these campaigns, UNITE filed unfair labor practice charges against Cintas, alleging that

Cintas engaged in the unlawful termination of certain employees, threatened employees with loss of benefits if they supported the Union, and maintained the subject confidentiality policy in violation of

Section 8(a)(1). The NLRB concluded that Cintas' policy violated the NLRA, and Cintas appealed that decision.

Cintas argued before the NLRB and the Court that (1) the language did not explicitly prohibit conduct protected by Section 7, (2) there is no evidence that employees have interpreted the confidentiality policy to prohibit conduct protected by Section 7, and (3) Cintas never interpreted the policy to prohibit or applied the policy to conduct protected by Section 7.

The NLRB and the Court rejected all three of Cintas' arguments, finding that the actual interpretation or enforcement of the policy was not dispositive. Rather, the crux of the inquiry was whether the "employees would

reasonably construe

the [disputed] language to prohibit Section 7 activity." Relying heavily on its recent decision in Guardsmark v. NLRB, No. 05-1216, 2/2/07, striking down an antifraternization policy as restricting Section 7 rights, the Court determined that the language "any information concerning…partners," in the Cintas policy was so broad that it could only be interpreted to prohibit employees from discussing the terms and conditions of their employment. Consequently, the policy "would reasonably chill employees in the exercise of their Section 7 rights."

Central to the Court's analysis of whether the employees would reasonably construe the policy to prohibit protected conduct was the context of the language. The Court determined that Cintas' policy did not fall in line with other policies sufficiently limited by context or language so as to be clear that the rule did not restrict Section 7 rights. Rather, the Court concluded that the Cintas policy was similar to language found impermissible in Brockton Hosp. v. NLRB. 294 F.3d 100 (D.C. Cir. 2002). In Brockton Hosp., the

Court struck down an policy prohibiting the sharing of "information concerning…associates [i.e., employees]" because it prohibited employees from discussing with each other or union officials information concerning themselves, which could easily be interpreted to include the terms and conditions of their employment.

The lesson to be learned is that Section 7 has broad reaching implications on the employment policies of all employers, whether unionized or not, regardless of whether the policy is intended to be restrictive of Section 7 conduct or is actually applied in such a manner. The Cintas Court nevertheless recognized that an employer could enact a policy to protect its confidential information without violating the Section 7 rights of its employees. The key is to draft a policy that strikes the right balance of protecting the company's legitimate interest regarding its confidential information without imposing restrictions or limitations that affect its employees' rights to communicate about their wages, hours and other terms and conditions of employment to the extent protected under the NLRA. We recommend that employers proactively consult labor counsel and collaboratively review existing policies to determine if your organization is at risk to an unfair labor practice charge of unlawfully infringing upon your employees'

Section 7 rights. At Buchanan Ingersoll & Rooney, our labor lawyers have the necessary experience to help employers navigate NLRA landmines. Our goal is to help you maximize your organization's opportunity to defend itself against unfair labor practice charges and lawfully maintain a union free environment.

If you would like additional information or want to discuss an appropriate labor relations and human resource strategy, including the drafting of lawful employment policies and practices, please call

Allan Dabrow.

Allan M. Dabrow

(215) 665-3608

[email protected]

1835 Market Street, 14 Floor

Philadelphia, PA 19103-2985

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