NLRB Finds Employee Civility, No-Recording, and Confidential Information Rules to Be Lawful

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In BMW Manufacturing Co., the National Labor Relations Board (the Board) held that several work rules found in the employer’s employee handbook did not violate Section 8(a)(1) of the National Relations Act (NLRA), which prohibits employers from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights to engage in concerted activities for their mutual aid and protection.

The Board utilized its now-familiar Boeing framework in which facially neutral work rules are divided into three categories, depending on whether they (1) are lawful, (2) warrant individualized scrutiny, or (3) are unlawful. Generally, the disputed rules related to employee civility towards the company and coworkers, and rules designed to protect trade secrets and the employer’s confidential information.

  1. Attitude Towards the Company: The employer maintained two rules requiring that employees “demonstrate respect for the Company” and “not engage in behavior that reflects negatively on the Company.” In reversing the administrative law judge, who found that these rules violated Section 8(a)(1) of the NLRA, the Board held that the employer’s legitimate justifications for the rule outweighed any adverse impact on employees’ exercise of Section 7 rights. Specifically, the Board reasoned that an employer’s legitimate interest in the loyalty integral to the employer-employee relationship are self-evident, and outweigh any speculative adverse impact on employees’ Section 7 rights. Accordingly, such rules will be deemed to be Boeing Category 1 rules that will be found lawful moving forward.

 

  1. Civility Rule: The employer’s rule prohibited employees from using “threatening or offensive language.” The Board found the rule to be the type of “lawful, commonsense” rule that an objectively reasonable employee would not view as potentially interfering with Section 7 rights. Accordingly, the Board placed the rule in Boeing Category 1 of work rules that this Board will consider lawful.

 

  1. No-Recording Rule: The rule prohibited employees from using personal recording devices within employer manufacturing facilities, and not use business recording devices within manufacturing facilities without management approval. The Board reaffirmed that employer no-recording rules of this nature are lawful. The Board reasoned that the rule services compelling employer interests in safeguarding proprietary secrets and classified information. Because the legitimate interests served by the rule “far outweigh[s]” the adverse impact of the rule on employees’ exercise of Section 7 rights, the Board placed the rule into Boeing Category 1, wherein no case-specific justification for the rule would be required.

 

  1. Confidential Information: Finally, the employer maintained a confidential information policy that encompassed “personal and financial information.” The Board again found that the “objectively reasonable employee” would understand the rule applies only to the employer’s proprietary business information, noting that the rule does not reference employee wages, contact information, or other terms and conditions of employment. Accordingly, the Board dismissed the allegation that the rule violated Section 8(a)(1) of the NLRA, and placed the rule in Boeing Category 1 because objectively reasonable employees would not interpret the rule, when read as a whole, to potentially interfere with Section 7 activities.

 

This case reaffirmed several previous Board holdings addressing similar rules, and serves as a reminder to employees that this Board will side with employers who maintain commonsense rules relating to civility and protection of trade secrets and confidential information.