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NLRB Affirms Unlawfulness of Employers Overbroad Confidentiality Rule
Practical Law Legal Update 8-607-7918 (Approx. 4 pages)
NLRB Affirms Unlawfulness of Employers Overbroad Confidentiality Rule
by Practical Law Labor & Employment
| Published on 07 Apr 2015 • USA (National/Federal) |
In DirecTV U.S. DirecTV Holdings LLC, the National Labor Relations Board (NLRB) found that the employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by implementing an overbroad confidentiality rule that restricted employees' blogging and other communications with the public, media and law enforcement. In doing so, the NLRB adopted its reasoning from a 2013 decision that was vacated in light of the Supreme Court's Noel Canning decision. The NLRB remanded the issue of whether the employer’s e-mail use policy violated Section 8(a)(1) because Register Guard, the case relied on by the NLRB in the original decision’s analysis of the e-mail use policy issue, has since been overruled by Purple Communications, Inc.
In DirecTV U.S. DirecTV Holdings LLC, the panel (Board) heading the NLRB's judicial and election functions issued a decision and order in which it adopted the reasoning and conclusions of an earlier invalid Board panel (359 N.L.R.B. slip op. 54 (Jan. 25, 2013); see also Legal Update, Unfazed by Ruling on Recess Appointments, NLRB Condemns Employer’s Restrictions on Unapproved Communications with Media, Law Enforcement). The 2013 decision and order was invalid because the Board was then composed of two persons whose appointments the Supreme Court held constitutionally infirm in NLRB v. Noel Canning (134 S. Ct. 2550 (2014); see also Article, Expert Q & A on Noel Canning and Its Aftermath and Legal Update, Supreme Court Holds 2012 Recess Appointments to the NLRB Were Invalid, Effectively Invalidates 20-Months of NLRB Decisions).
On remand, a three-member panel of the Board (Chairman Pearce and Members Hirozawa and McFerran):
- Adopted the finding that the employer committed an unfair labor practice (ULP) by maintaining an overboard confidentiality rule that limited employee communications with the general public, media and law enforcement.
- Remanded the issue of whether DirecTV’s policy titled “Use of Company’s Systems, Equipment and Resources” violated Section 8(a)(1). In the original analysis on that issue, the Board relied on Register Guard, which has since been overruled by Purple Communications, Inc. (351 N.L.R.B. 1110 (2007); 361 N.L.R.B. slip op. 126, (Dec. 11, 2014)).
(362 N.L.R.B. slip op. 48 (Mar. 31, 2015).)
The Board directed the Chief Administrative Law Judge to designate an ALJ to decide whether under the framework of Purple Communications, the employer can overcome the presumption that employees have the right to use an employer’s e-mail system to engage in Section 7 protected communications during non-working time. DirecTV will need to show that special circumstances necessary to maintaining production or discipline necessitated the restriction on employees’ Section 7 rights.
Practical Implications
The Board continues its practice of rubber-stamping decisions affected by Noel Canning, unless subsequent developments require a reexamination of those decisions. With the exception of the e-mail use issue that will be decided on remand, the Board’s decision makes it clear that while employers have legitimate interests in regulating employee communications with the media and other outside parties, rules categorically prohibiting such communications or requiring employees to obtain the employer’s permission prior to doing so will not survive Board scrutiny. For more information, see Legal Update, NLRB General Counsel Red Flags Common Terms in Employment Rules.