NLRB Finds Confidentiality And Media Contact Rules Lawful

By Kamer Zucker Abbott

November 19, 2019

The National Labor Relations Board (NLRB or Board) recently applied the Board’s new Boeing standard to find an employer’s confidentiality and media contact rules lawful under the National Labor Relations Act (NLRA or Act).

Under Boeing, the Board now classifies work rules into three categories: Category 1 includes rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule; Category 2 includes rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications; and Category 3 includes rules that the Board designates as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.

The Board recently applied this new framework in LA Specialty Produce Co. to find that the employer’s confidentiality and media contact rules were lawful. Moreover, the Board declared rules prohibiting the disclosure of confidential and proprietary customer and vendor lists and rules that prohibit employees from speaking to the media on behalf of their employer to be Category 1 rules.

This common-sense decision provides much needed guidance to employers drafting and/or updating work rules. It is also an instructive opinion that demonstrates how the Board balances work rules against the rights afforded employees under the Act.