workers. But the majority said this was irrelevant, ruling that “a union’s ability to communicate with em- ployees by means other than the eligibility list does not influence the determination of whether the employer has substantially complied with its Excelsior duty.” (Mod Interiors, Inc., 324 NLRB No. 33)

Meaning for Management These cases underscore the attention to detail neces-

sary to comply with Board rules during elections. There was no evidence in either case that the employers’ failure to comply perfectly with the rules was inten- tional or had an actual effect on the outcome of the elections. Nevertheless, both employers found them- selves stuck with the expense, uncertainty, and turmoil of having to hold a second election.

Preventive Tactics

Was Employee Confidentiality Agreement Unlawful?

To help prevent unionization, some employers create confidentiality policies that bar employees from discuss- ing work-related matters with anyone other than co- workers, bar disclosure by employees of their wages, and similar prohibitions. In drafting such policies, employ- ers must be very careful not to make them overly broad. When a policy is overly broad, it is susceptible to being ruled an unfair labor practice.

In one recent case, a hospital that was experiencing a union organizing drive had long required its employ- ees t o sign an agreement that they would keep informa- tion regarding patients confidential. The hospital was due for an accreditation review. It revised its confiden- tiality agreement to add the following two new sections:

3. I will not divulge any confidential or nonpublic information concerning the employees, operations, or strategic plans of The Medical Center, which I may acquire through my employment, to anyone not autho- rized to receive such information.

4. I will not divulge or misuse any such information a t any time during the term of my employment or after such employment ends.

The union charged that this new agreement unlaw- fully restricted employees from exercising their Section 7 right to organize. The employer said the addition to its confidentiality agreement was needed to meet new accreditation guidelines.

Advice from the NLRB associate general counsel stated that both of the employer’s new confidentiality rules were “overly broad,’’ because they “could be rea- sonably read by employees to bar the Section 7 disclo- sure ofterms and conditions ofemployment.” In particu- lar, the employer’s attempt to prevent employees from disclosing “nonpublic information to anyone not autho- rized to receive such information” could be seen by employees as preventing them from providing union organizers with information such as lists of employee names, information about wages, and other data that employees have the right to share with each other and union representatives.

Previous Cases In previous cases, cited in the advice memorandum,

the Board has found employer confidentiality rules unlawful where the rule:

barred disclosure of employee names, addresses, and wage rates; barred discussion of “hospital affairs, patient infor- mation and employee problems”; barred “improper or unseemly conduct on or off the company’s premises. . . which affects the employee’s relationship to hisher job . . . fellow employees . . . supervisors . . . or affecting the company’s product, reputation or goodwill”; barred employees from disclosing company informa- tion that was not generally available to the public.

Employers may lawfully bar employees from disclosing “clearly confidential employer information,” the letter said. Rules that go beyond this are unlawful, because employees have the right, under federal law, to disclose and discuss terms and conditions of employment. H

Keeping Displays of Union Materials Out of the Workplace

A J.C. Penney warehouse had a long-standing policy that prohibited the display of personal items, solicita- tions, or any notice not sponsored by the company, on bulletin boards. One benefit of such policies-and a

0 1998 John Wiley & Sons, Inc.

6 Management Report Nanuary 1998