The National Labor Relations Board (“Board”) recently issued its decision in The Boeing Company case. The Board found that Boeing’s confidentiality policy regarding internal investigations violated the National Labor Relations Act (“Act”) because it chilled employees’ exercise of their Section 7 rights.
Boeing maintained a policy that mandated that employees involved in Human Resources investigations refrain from discussing the investigation with any “Boeing employee other than company employees who are investigating this issue or your union representative.” The policy also required employees to refer any co-workers or managers who wanted to discuss the investigation to the HR representative handling the investigation.
The Board determined that “such blanket confidentiality directives impermissibly infringe on employees’ statutory right to discuss among themselves their terms and conditions of employment and otherwise engage in concerted protected activity.” Despite Boeing’s argument that the policy, in the context of internal investigations, was lawful because it was required to ensure employees were not retaliated against, harassed, or the subject of rumors, the Board asserted that an employer is required to tailor its confidentiality policy to the circumstances. Thus, while confidentiality may be necessary in some cases, the Board took issue with the policy’s sweeping nature because it included all investigations. The Board stated that the employer had an obligation to minimize the impact of its confidentiality policy on employees’ Section 7 rights, and a broad policy like Boeing’s was not in line with this obligation.
The Board also addressed Boeing’s attempt to revise its policy. Instead of mandating that employees refrain from discussing the investigation with others or direct inquiring employees to the appropriate HR representative, the new policy recommended that employees refrain from these things. The Board held that “whether a rule is unlawful is not premised on mandatory phrasing, subjective impact, or even evidence of enforcement, but rather on the reasonable tendency of such a prohibition to coerce employees in the exercise of fundamental rights protected by the Act.” Thus, the Board found that Boeing’s revised policy presented no actual change to the policy because the employer continued to clearly communicate its desire for confidentiality and requested that employees sign a notice regarding confidentiality. Therefore, the Board concluded the use of the term “recommended” did not simply signify the employer’s preference for confidentiality, but insistence on confidentiality.
Member Johnson dissented, finding that the employer’s revised policy was lawful. Member Johnson stated that the employees are advised to maintain confidentiality, but that there was no implicit or explicit mandate that they do so. Nor did the policy suggest that employees would be disciplined for ignoring the policy. Instead, the employees were informed of the employer’s reasons for recommending confidentiality, but were able to choose whether to follow the recommendation.
The Board’s decision reinforces the General Counsel’s Memo on Handbook Rules and is yet another reminder for employers to carefully and regularly review their handbook policies, especially those that may touch upon their employees’ ability to communicate with each other about wages, hours, and working conditions.