March 2013 CBA REPORT
ity on account of age, race, religion, sex,
ethnicity, nationality, disability, or other
protected class, status, or characteristic.”
The Board viewed this policy in light
of the contextual language and found
that the rule could not reasonably be
construed to apply to protected activity
since it appears within a list of “plainly
Thus, an employer’s social media pol-
icy must provide the necessary context to
clarify that only harassing or discrimi-
natory communications are prohibited.
Overbroad statements will be found
unlawful if examined by the NLRB.
Confidentiality Rules Now
In addition to its activity in the social
media realm, the NLRB has challenged
other common policies and business
practices in non-union workplaces. A
recent case demonstrates that even a rule
requiring employees to keep their com-
plaints to human resources confidential
during an investigation can run afoul of
In this case, the Board took
an even more expansive view of what
constitutes protected activity and found
that this type of blanket confidentiality
rule impermissibly infringes on employ-
ees’ Section 7 rights.
According to the decision, a com-
pany policy that prohibits employees
from discussing ongoing investigations
of employee misconduct violates the
NLRA unless the employer shows that
it has “a legitimate business justifica-
tion that outweighs employees’ Section
7 rights.” An employer’s general concern
about protecting the integrity of an
investigation is not sufficient to outweigh
Section 7 rights. In the past, however,
the Board has recognized that confi-
dentiality instructions are important in
other circumstances, such as to protect
attorney-client privilege or to investigate
theft, discrimination, or harassment
The status of the NLRB decisions
is yet to be known in light of the
decision, but attorneys and
employers should be aware of the NLRB
activity prior to social media related
Schoening is a partner at DBL Law, representing
private and public employers in all facets of
employment law. Her practice includes advising clients
on compliance with various employment laws and
providing in-house training on such issues. Tranter is
an associate attorney practicing primarily in the area
of employment law.
NLRB, Operations Memorandum 11-74 (Aug. 18
2011); NLRB, Operations Memorandum 12-31 (Jan. 24,
2012); NLRB, Operations Memorandum 12-59 (May 30,
National Labor Relations Act,
2 29 U.S.C. § 157 (2000).
, 245 NLRB 814, 816 (1979).
4 29 U.S.C. § 158(a) (2000).
Noel Canning v. NLRB
, 2013WL 276024 (D.C. Cir.)
Hispanics United of Buffalo, Inc.
, 359 NLRB 37 (2012).
Great Lakes Packaging
Arrow Electric Company, Inc.
, 323 NLRB 968 (1997).
Datwyler Rubber and Plastics, Inc.
, 350 NLRB 669 (2007).
Children’s National Medical Center
, NLRB Case 05-CA-
, 358 NLRB No. 106 (2012).
Banner Health Systems
, 358 NLRB No. 93 (2012).
Dedicated Fiduciary Professionals
For more information contact
Bernard H. Wright, Jr., Senior Executive Vice President & Trust Officer; S. Diane Ingram, Assistant Vice President & Trust Officer; Leroy F. McKay, Executive Vice President & Trust Officer;
Melanie K. Crane, Assistant Vice President & Trust Officer; Steve P. Foster, President ; Bradley A. Ruppert, Vice President & Trust Investment Officer