Can You Keep A Secret?: The NLRB and Confidentiality

Authored by Robert S. Seigel

Nov 10, 2014

Our firm is frequently asked the following question by clients:

We just found out that one of our non-supervisory Human Resources employees has been leaking confidential information about discipline and labor relations strategies to other employees who are her friends. Can we discipline or fire her for this?

Most clients assume the answer will be yes. After all, the employee occupies a sensitive confidential position and leaking the information would appear to be a breach of trust. But, the National Labor Relations Board (“NLRB”) has long held that employees have a protected right under the National Labor Relations Act (“NLRA”) to freely discuss matters relating to wages, hours, and working conditions without fear of discipline.

Suddenly the answer to the question is not so simple. Framed another way, the real question now becomes: “Can an employer discipline an employee whose job requires access to confidential labor relations information, if the employee discloses that information to other employees even though this activity would be protected if engaged in by employees who do not occupy a confidential position?”

The NLRB’s Division of Advice (“Advice”) recently opined that the answer to this reframed question is a qualified “yes.” In IAM District Lodge 751, 19-CA-119268 (Aug. 18, 2014), the Advice considered whether the union, acting in this case as an employer, violated the NLRA when it discharged its payroll clerk/staff assistant for leaking to another employee that the Union planned to modify its employee timekeeping system because this particular employee had been abusing the existing system. The payroll clerk leaked this information to the employee before it was announced to the office employees as a group.

Advice concluded that the employee’s disclosure of the information constituted such disloyalty to the employer as to remove the disclosure from the protection of the NLRA. Advice examined two factors in reaching its conclusion: (1) whether the information was wrongfully obtained; and (2) whether the information was a type that the employer had the right to expect would be treated as confidential, such that disclosure of the information represented a fundamental breach of trust. In assessing the latter factor, Advice examined the extent to which the employer adopted measures to prohibit and prevent disclosure of the information.

In this case, the employer prohibited and attempted to prevent disclosure by having employees sign a written confidentiality policy upon hire. In addition, the employer warned the discharged employee several times not to disclose confidential information. The Advice’s Opinion makes clear that other means may be employed to accomplish the same purpose, such as labeling documents as “Confidential, not for General Distribution.”

Information relating to a company’s labor relations strategies and proposed policy revisions is extremely sensitive. Improper disclosure of this information can have serious adverse consequences. Protecting this information from premature or improper disclosure requires a delicate balance between employee rights under the NLRA and an employee’s duty of loyalty to his/her employer. The attorneys at The Lowenbaum Partnership are available to help you design safeguards for the protection of confidential information both in the context of the employment relationship and business transactions.

If you have any questions about protecting confidential information or any other labor relations matter, please do not hesitate to contact Robert S. Seigel.

Page 1 of 11