It is important for employers covered by the National Labor Relations Act (“NLRA” or “Act”) to remember the impact which the Act can have on employment policies and rules – including, but not limited to, policies and rules in connection with confidentiality. This article is not intended to provide an exhaustive review of this area. Instead, it will merely refer to portions of the recent decision in Cintas Corporation v. National Labor Relations Board, 482 F.3d 463 (D.C. Cir. 2007) which “involve[d] an allegation that the confidentiality rule of [an employer] violated provisions” of the NLRA. Id. at 464.

The employer (which “refer[red] to its employees as ‘partners’”) set forth company policies in a handbook and a section of the handbook “include[d] a discussion of how employees are expected to treat confidential information:

We honor confidentiality. We recognize and protect the confidentialityof any information concerning the company, its business plans, its partners, new business efforts, customers, accounting and financial matters.” 465.

The court indicated that “[i]n another section, titled ‘Disciplinary Policy,’ employees are warned that they may be sanctioned for ‘violating a confidence or [for the] unauthorized release of confidential information.” 465.

The court referred to Section 7 and Section 8(a)(1) of the Act and stated:

“Section 7 of the NLRA guarantees employees the right to ‘self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . .’ 29 U.S.C. § 157. Section 8 prohibits employers from ‘interfer[ing] with, restrain[ing], or coerce[ing] employees in the exercise of [that] right[].’ 29 U.S.C. § 158(a)(1).” 466.

A union filed “unfair labor practice charges” with the National Labor Relations Board (“the Board”) alleging that the company “was in violation of section 8(a)(1) of the NLRA (29 U.S.C. § 158(a)(1).” Id. at 465. The court stated that “[t]he Board here held that the confidentiality language in the Company’s employee handbook violated section 8(a)(1) because a Cintas employee could, in the Board’s view, reasonably interpret the handbook’s confidentiality language to restrict her section 7 right to discuss wages and other terms or conditions of employment with other employees or with the Union.” 466. The court indicated that “[t]he Board’s order required that Cintas either rescind the disputed language and provide employees with handbook inserts substituting lawful language, or distribute a revised employee handbook with the appropriate substitution of lawful language for unlawful language” and that “[t]he Board also required the Company to post a remedial notice.” 466.

The employer argued, among other things, that it “never applied the confidentiality rule in the manner feared by the Union,” 467. The court, however, granted the Board’s request “for enforcement of its order in full.” 470.

While the above is not intended to provide an exhaustive review of this area, it does show that employers covered by the NLRA should carefully consider (and discuss with legal counsel) the NLRA when preparing employment policies and rules.