NLRB Continues to Take Aim at Workplace Policies as Overly Broad

by Ballard Spahr LLP

The National Labor Relations Board (NLRB) has kept its focus on workplace policies it views as overly broad with a recent decision striking down a national retailer's policy prohibiting solicitation and distribution of pamphlets or other literature for “commercial purposes.” This development comes on the heels of an advisory memorandum recently issued by the NLRB reiterating its position that a blanket rule of confidentiality for employee investigations is unlawfully overbroad. Both developments should prompt employers to reexamine the scope of such policies.

Solicitation/Distribution Policies

In a decision issued on April 26, 2013, the NLRB upheld an administrative law judge’s ruling that a national retailer’s solicitation/distribution policy was overly broad, but reversed the ALJ’s finding that the company’s parking lot policy was unlawful. Under the parking lot policy, workers are required to notify either store security or their leader on duty if they see anyone unfamiliar loitering around the employee parking area.

There was no dispute that part of the solicitation/distribution policy lawfully prohibited solicitation and distribution of literature during working time and in working areas. The NLRB held, however, that an additional prohibition against soliciting, distributing literature, selling merchandise, or conducting monetary transactions for commercial purposes at all times on store premises violated the National Labor Relations Act (NLRA).

Although the NLRB conceded that in isolation the prohibition appears permissibly to address selling goods and services, the immediately preceding language banning solicitation and distribution “[f]or personal profit” already encompassed selling goods and services. Therefore, the NLRB reasoned, “it would be entirely reasonable for employees to conclude that ‘[f]or commercial purposes’ means something different, including solicitation and distribution for other organizations, such as unions.” The NLRB’s interpretation was bolstered by the fact that, during a pre-election campaign, the retailer had “told employees that the Union is a ‘business’ that ‘sells memberships.’” 

In addition to ruling on the solicitation/distribution policy, the NLRB reversed the administrative law judge’s finding concerning the retailer's parking lot policy. The ALJ had found unlawful the policy requiring employees to report unknown loiterers because it could be construed by employees as restricting their right to engage in union organizing and other activities protected under Section 7 of the NRLA.

The NLRB explained that “when (as here) a rule does not refer to Section 7 activity, ‘we will not conclude that a reasonable employee would read the rule to apply to such activity simply because the rule could be interpreted that way.’” Applying that principle in light of the policy’s stated purpose of ensuring employee safety, the NLRB held that “a reasonable employee would realize the lawful purpose of the challenged provision from its context and infer that [the retailer's] purpose in promulgating it was to ensure safety, ‘not to restrict Section 7 activity.’”

Workplace Investigations

An NLRB Advice Memorandum, dated January 29, 2013, but not released until late April, advised that “a blanket rule prohibiting employee discussions of ongoing investigations is invalid” because it did not include any specific analysis of the need for confidentiality. The employer’s Code of Conduct included a provision stating:

Verso [Paper] has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation, and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

The memorandum explains that employees can be prohibited from discussing investigations only if there is a demonstrated legitimate and substantial business justification that outweighs Section 7 rights. Citing its decision last year in Banner Health, the NLRB advised that such a justification must be more than “a generalized concern with protecting the integrity of its investigation.” Rather, an employer needs to present specific facts on a case-by-case basis to meet its burden. Instead of a blanket confidentiality rule, the memorandum suggested the employer could modify its rule to lawfully inform employees that it may decide in some circumstances that confidentiality is necessary to achieve the company’s objectives regarding an investigation.

Ballard Spahr’s Labor and Employment Group routinely assists employers with NLRB compliance and in drafting and reviewing workplace policies. If you have questions or concerns about any workplace policies, please contact Brian D. Pedrow at 215.864.8108 or, Andrew I. Herman at 215.864.8412 or, or the member of the Group with whom you work.

Written by:

Ballard Spahr LLP

Ballard Spahr LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.