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Non-Union Handbook Nevertheless Violates National Labor Relations Act

By Keith L. Pryatel

In a decision adverse to Cincinnati-based Cintas Corporation, the National Labor Relations Board recently ruled that broadly worded provisions contained within a non-union employee handbook violated fundamental protections afforded under the National Labor Relations Act (Cintas Corp., 344 NLRB No. 118 (2005)). The decision reinforces the notion that even non-union employers are subject to some of the laws and regulations which exist under the National Labor Relations Act, a law that traditionally regulates conduct between unions and companies.

Cintas’ employee reference guide included language emphasizing the importance of maintaining confidentiality. Thus, it specifically stated: “We recognize and protect the confidentiality of any information concerning the company, its business plans, its partners, new business efforts, customers, accounting and financial matters.” Another provision expressly stated that violation of the confidentiality provision or the unauthorized release of confidential information could lead to discipline.

The National Labor Relations Board’s general counsel asserted that the rule limited employees’ rights to discuss their terms and conditions of employment, in violation of Section 8(a)(1) of the National Labor Relations Act. The general counsel’s actions were spurred by UNITE HERE, a union that is seeking to organize Cintas’ Workforce.

According to the National Labor Relations Board, Cintas’ prohibitions were overbroad; they easily could be misinterpreted as restricting the right of employees to discuss their wages and terms and conditions of employment. “The rule’s unqualified prohibition of the release of ‘any information’ regarding ‘its [employees]’ could be reasonably construed by employees to restrict discussion of wages and other terms and conditions of employment with their fellow employees and with the union.” The Board ordered Cintas to either publish a new handbook without the illegal provision or publish inserts which could then be placed into the previously distributed handbooks.

Most non-union employers erroneously believe that they are left unregulated by the National Labor Relations Act and its accompanying protections. The Cintas decision rebuts that myth, and generally holds that any ambiguity in a published handbook will be construed against the drafting employer. Here, Cintas’ seemingly innocuous confidentiality provision was viewed by the NLRB as invading the province of employees to discuss, freely and openly, their wages, hours, and terms and conditions of employment without the threat of discipline.

ABOUT THE AUTHOR

Keith L. Pryatel, Esq., is a shareholder with the Akron, Ohio, law firm of Kastner Westman & Wilkins, LLC (www.kwwlaborlaw.com). He concentrates his practice on equal employment opportunity litigation, occupational safety and health defense, labor arbitration, public sector matters before the State Employment Relations Board, and appellate practice before the state and federal courts of appeals. Mr. Pryatel can be reached at 330-867-9998 or kpryatel@kwwlaborlaw.com.

This article originally appeared in the Summer 2005 issue of kwwlaborlaw.communicator, a publication of Kastner Westman & Wilkins, LLC.

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April 2006