NLRB Judge OKs Some Nondisclosure Rules But Finds Illegal Ban on Boisterous Activity

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June 6 — A Connecticut electrical contractor could not legally prevent employees from disclosing the customer locations where they worked, but the employer could insist that its workers not reveal client phone numbers, a National Labor Relations Board administrative law judge held June 4 .  

An International Brotherhood of Electrical Workers local charged that the company maintained several rules that interfered with employee rights under the National Labor Relations Act. ALJ Raymond P. Green mostly agreed, but he found that Professional Electrical Contractors of Connecticut Inc. (PEC) had a right to prohibit employees from disclosing some customer information, including phone numbers, to union agents or other “outsiders.”

Green said it was not his function to read the company's rules “with a fine tooth comb” in search of an unfair labor practice, but some of the challenged provisions suggested that workers could not exercise their rights under the NLRA. The ALJ found that a rule against “boisterous” activity in the workplace was overbroad and unlawful because it could prohibit employees from having vigorous discussions about wages, hours and working conditions.

Mixed Ruling on Job Site Information

According to the decision, PEC employees perform most of their work at customers' construction or renovation sites. The company maintained an employee handbook provision stating: “Do not disclose the location and telephone number of your customer assignment to outsiders.”

PEC offered no specific justification for the rule, but argued that its employees had access to customer information that should be protected. Employees were free to disclose their own mobile phone numbers to anyone, PEC said, so the company rules should not have had any impact on their ability to engage in NLRA-protected activity.

Green found that keeping the location of PEC job sites secret was “too broad” because it could “inhibit the ability of a union to meet with and communicate with employees.”

However, he added, all of the PEC employees have personal or company mobile phones. Finding that the workers had no need to use a customer phone number in dealing with a union, he dismissed the allegation that the phone number rule was unlawful.

Lawful Limit on Disclosing ‘Customer Information.'

The ALJ also dismissed an allegation by the NLRB's general counsel that PEC violated federal labor law by maintaining a rule that “no associate shall disclose customer information to outsiders, including other customers or third parties and members of one's own family.”

The general counsel argued that the rule was so broad that it would preclude disclosing work locations, but Green disagreed. When read in context, the ALJ found, it was clear that the rule related only to customer information that PEC employees acquired at customer work sites.

Concluding that the rule could not reasonably be interpreted as limiting PEC employees from having legally protected discussions with co-workers or unions, Green found that the rule did not violate the NLRA.

‘Boisterous Activity' Ban Overbroad, Illegal

The ALJ agreed with the general counsel that PEC violated the rights of employees by maintaining a policy that included “boisterous” workplace activity among actions that could lead to an employee's immediate discharge.

The board found in 2 Sisters Food Group, Inc., 357 N.L.R.B. No. 168, 192 LRRM 1279 (2011), that a rule targeting employees who did not work “harmoniously” with co-workers was overbroad and unlawful because “it could encompass any disagreement or conflict among employees,” including those protected by the NLRA.

Applying the same reasoning, Green found that PEC's handbook ban on “boisterous” activity in the workplace violated Section 8(a)(1) of the act.

Text of the ALJ decision is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-9ktnux.