The NLRB continues undeterred by Noel Canning and New Vista, and has continued to strike down employer work rules or policies that somehow restricted employees' ability to complain about work-related issues. The cases can arise even when no union is on the scene. Three cases illustrate the Board's continued efforts.

Target Corp.: The Board in April found that Target maintained an unlawful policy that said, "Certain activities are prohibited at all times on Target premises," including solicitation, distribution, selling and "conducting monetary transactions . . . for personal profit . . . [or] commercial purposes," or in support of a charity that was not a part of the Target community relations program. The Board noted that Target in a recent representation election campaign had asserted that a local of the UFCW was a "business" that "sells memberships," and that employees would reasonably construe the policy as prohibiting organizing activity. The Board also found that Target maintained an unlawful "information security policy" that prohibited employees from discussing wages, benefits, and employment conditions. The Board ordered rescission of the policies, amendment of employee handbooks, and posting of a Board notice about the policies' rescission at Target stores nationwide where the policies had been applied. More unfortunately for Target, the Board set aside a representation election in which the majority of employees had voted against representation by the UFCW local.

American Red Cross Blood Services, Western Lake Erie Region: An Administrative Law Judge of the NLRB struck down on June 4 an employee confidentiality agreement used by the Red Cross region. The policy, contained in a Confidential Information and Intellectual Property Agreement, with parallel provisions of an employee handbook and code of conduct, prohibited disclosure of "confidential information," which was defined in the agreement to include "personnel" information. The Acting General Counsel of the NLRB alleged that this language could be interpreted by employees to cover wages, benefits, and other working conditions. The employee handbook policy also prohibited the release of "employee information." In finding the policies unlawful, the ALJ commented, "By defining confidential information as including information regarding 'personnel' and 'employees' the [agreement] . . . would be reasonably understood by employees to prohibit the disclosure of information including wages and terms [and] conditions of employment to other employees or to nonemployees, such as union representatives." The ALJ found that a savings clause in the agreement -- providing that nothing in the agreement was to abridge rights under labor law -- did not rescue the policies because it was unlikely that employees knew their rights under the labor law. Therefore, the ALJ said, employees were likely to follow the "unlawfully broad restriction" rather than try to understand and assert their rights under the disclaimer language.

Advanced Plastic Surgery Center: The employer in this case agreed to pay more than $315,000 to settle the unfair labor practice case brought on behalf of two employees who were discharged for violating a rule prohibiting discussions of wages. According to the NLRB announcement of the settlement, the case began in December 2010 when a medical technologist was fired for discussing bonuses with other employees. The employee filed a unfair labor practice charge with the NLRB's Regional Office in Fort Worth, Texas. After investigation, the Regional Director issued a complaint and scheduled a hearing before an ALJ. The Center then fired a second employee, a surgical consultant, after she defended co-workers at a meeting and engaged in other unspecified concerted activity. She also filed an unfair labor practice charge, and the Regional Office investigated and issued a second complaint. The two cases were then consolidated.

According to the NLRB, the attorney for the employer claimed to represent the employees and required that all contact with the Region investigator go through him. The surgical consultant alleged that she had been coerced into being represented by the employer's attorney.

The employer then went on the offensive and sued the surgical consultant in Texas state court, alleging that she had been negligent and had breached her fiduciary duty to the employer. The NLRB found that the lawsuit had no merit and was in retaliation for the surgical consultant's unfair labor practice charge.

After a three-day hearing before an ALJ in October 2012, the parties settled . The employees waived reinstatement and were compensated for lost wages and benefits, as well as the surgical consultant's attorneys' fees and costs in defending the state court lawsuit. In addition to the monetary settlement, the employer agreed to (1) rescind the confidentiality rule that began the whole dispute, (2) dismiss the state court lawsuit, (3) terminate the representation of its non-management employees by its attorney, and (4) post, read, and mail a notice to current and former employees informing them of their rights under the NLRA. Having and enforcing the unlawful confidentiality rule was a mistake, but defending it too aggressively may have been an even bigger one.