Do Your Employment Policies Violate the National Labor Reactions Act?

On September 7, 2012, the National Labor Relations Board (NLRB) issued an opinion in Costco Wholesale Corp. v. NLRB. The case is an important one for all employers (regardless of whether their employees are union or non-union). It deals with the NLRB’s continuing focus on what it believes to be over-reaching employment policies that violate Section 7 and/or 8 of the National Labor Relations Act (NLRA). In fact, in the last 12 months, the NLRB’s Acting General Counsel has issued three reports on the issue.

Section 8 of the NLRA states that it is an “unfair labor practice” for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Section 7 of the NLRA provides all employees (union and non-union) with the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

In Costco, the United Food and Commercial Workers Union (“Union”) began a campaign to organize the meat department at one of Costco’s warehouse locations and filed a petition to represent the employees. According to the Union, during the campaign Costco allegedly unlawfully interrogated its employees by making various statements about their involvement with the Union. The Union brought an unfair labor practice action against Costco on this basis and also challenged certain employment policies that Costco had prohibiting employees from engaging in certain conduct.

What is most disturbing about this case is that the policies at issue are not uncommon and are reasonably aimed at protecting the employer’s and other employees’ confidential information and their reputations. Specifically, Costco’s handbook included policies that prohibited employees from posting or distributing materials on company property, discussing other employees’ private matters (such as leaves of absence and personal health information), and sharing or transmitting employees’ “sensitive information” (e.g. financial information, social security numbers, telephone numbers, emails, and addresses). Costco also prohibited employees from electronically posting statements that “damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement” and prohibited employees from leaving the employer’s premises without permission. The policies provided that employees who violated the rules could be subject to discipline, up to and including termination.

Nevertheless, the NLRB determined that the policies limiting the posting and sharing of information violated the NLRA and the policy regarding the rule prohibiting statements that damage the Company or any person’s reputation, could be construed by employees as “…prohibit[ing] Section 7 activity.” Therefore, according to the NLRB, an employer’s general prohibition of statements that could damage or defame the company or others could be viewed by the NLRB as violations of employees’ right to “concerted activity.”

How then does an employer draft effective policies in way to reduce the risk of a NLRA violation?

In Costco, the NLRB disapproved of a “broad” prohibition against sharing confidential information or making statements that damage the Company or any person’s reputation, and found that such prohibitions “clearly” encompass concerted communications under the NLRA. The NLRB emphasized that “there is nothing in [Costco’s] rules that even arguably suggests that protected communications are excluded from the broad parameters of the rules.” Also according to the NLRB, the employer’s policy “does not present accompanying language that would tend to restrict its application.”

Given these statements, it would appear that the NLRB expects for an employer’s policies that prohibit the sharing of confidential information or the making of statements that damage the Company or any person’s reputation, include language that clearly states that any protected concerted activities under the NLRA are excluded from such policies.

Recommendation: Based on the Costco decision and the apparent heightened scrutiny by the NLRB of the language of various employment policies, employers are advised to work with their employment counsel to analyze and update their employment policy manuals or handbooks appropriately.