The National Labor Relations Board (NLRB) may be in a state of limbo, but employers still have reason to be concerned about how the board will view their policies, as demonstrated by a decision this week that found that a Toledo, Ohio American Red Cross unit’s confidentiality clauses were too broad.

The United Food and Commercial Workers Union accused the Red Cross of deterring workers from collective action with its employee handbook, code of conduct and “Confidential Information and Intellectual Property Agreement.” The union, along with the NLRB’s acting general counsel, argued that employees could reasonably construe these policies, which prohibited sharing “personnel information” with other workers or outside the company, as barring them from discussing wages and other conditions of their employment. An administrative law judge agreed, finding the policies unenforceable and ordering the Red Cross to rescind them.

The NLRB has a recent history of finding policies too broad. In arguing the Red Cross case, the union and the NLRB cited the board’s September 2012 decision that found Costco’s social media policy too broad, and that it had the potential to chill protected concerted activity. That case is waiting around in the D.C. Circuit ever since that circuit found that President Obama’s recess appointments to the board were invalid and the NLRB therefore did not have the quorum to make decisions. The Red Cross made a similar argument in this case, however, the administrative law judge was not persuaded.

Read more at Thomson Reuters.


For more InsideCounsel coverage of the NLRB’s campaign against broad handbooks and policies, see below:

Labor: The NLRB will not be ignored

Target handbook unlawfully discouraged union activity, NLRB says

Drafting social media policies under pressure

Cases pit Native American sovereignty against NLRB authority