MACY'S, INC.,

Docket Number01-CA-123640

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Macy’s, Inc. and United Food and Commercial Workers Union, Local 1445. Case 01–CA– 123640

August 14, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On May 12, 2015, Administrative Law Judge Joel P. Biblowitz issued the attached decision. The Respondent filed exceptions1 and a supporting brief, the General Counsel filed an answering brief, and the Charging Party filed an opposition to the exceptions.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order. 2

The Respondent has excepted only to the judge’s finding and conclusion that the Respondent’s rules prohibiting the use of customer information violate Section 8(a)(1). We find merit to this exception. While employees generally have a Section 7 right to appeal to their employer’s customers for support in a labor dispute, the disputed rules do not restrict such appeals. Instead, they prohibit the disclosure of information about customers obtained from the Respondent’s confidential records. For the reasons stated below, this prohibition does not violate the Act.

Facts

At issue here are the restrictions on use of customer information in the following rules. The relevant portions at issue are italicized.

CONFIDENTIAL INFORMATION What To Know

1 The Respondent does not except to the judge’s findings that the Respondent violated Sec. 8(a)(1) by maintaining handbook rules prohibiting the use of information about employees, restricting use of the Respondent’s logo, or requiring employees to notify the human resources department prior to participating in a government investigation.

2 We shall modify the judge’s recommended Order to conform to our findings and to Guardsmark, LLC, 344 NLRB 809, 812 (2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir. 2007), and to provide for the posting of the notice in accordance with J. Picini Flooring, 356 NLRB 11 (2010). We shall substitute a new notice to conform to the Order as modified.

Confidential information about our Company, its business, associates, customers and business partners should be protected. It can be used only to pursue the Company’s business interests or to comply with the Company's legal or other obligations.

What is confidential information? It could be business or marketing plans, pricing strategies, financial performance before public disclosure, pending negotiations with business partners, information about employees, documents that show social security numbers or credit card numbers—in short, any information, which if known outside the Company could harm the Company or its business partners, customers or employees or allow someone to benefit from having this information before it is publicly known.

Just as our Company requires that its own confidential information be protected, our Company also requires that the confidential and proprietary information of others be respected.

What To Do

In performing our duties, we as associates may have access to confidential information relating to our Company, its business, customers, business partners or our co-workers.

We are all trusted to maintain the confidentiality of such information and to ensure that the confidential information, whether verbal, written or electronic, is not disclosed except as specifically authorized. Additionally, it must be used only for the legitimate business of the Company.

Here are some simple rules to follow.

Confidential information should:

 Be stored in locked file cabinets or drawers and not be left where others can see it,

 Be clearly marked as confidential whenever possible,

 Be shared only with those who need to see it for

Company business purposes,

 Not be sent to unattended fax machines or printers,

 Not be discussed where others may hear,  Be shredded when no longer needed.

Always respect the confidentiality of the information of third parties. We must not use or disclose any of it ex-

365 NLRB No. 116

2

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

cept as authorized under a written agreement approved by our Law Department.

USE AND PROTECTION OF PERSONAL DATA What To Know

The Company has certain personal data of its present and former associates, customers and vendors. It respects the privacy of this personal data and is committed to handling this data responsibly and using it only as authorized for legitimate business purposes.

What is considered personal data? It is information such as names, home and office contact information, social security numbers, driver's license numbers, account numbers and other similar data.

What To Do

We have a strict obligation to use such personal data in a manner that:

 respects the privacy of our co-workers and our Company’s customers and vendors,

 complies with all applicable laws and regulations, and Company policies,

 upholds any confidentiality or privacy obligations of the Company in its contracts.

In addition, we must follow all policies and measures adopted by the Company for the protection of such data from unauthorized use, disclosure or access. If any of us becomes aware of any instance of data being accessed or being used in an unauthorized manner, we must report it immediately to our Divisional Security Administrator or the Law Department.

CONFIDENTIALITY AND ACCEPTABLE USE OF COMPANY SYSTEMS

The following standards and procedures apply to your use of, or access to, all Confidential Information.

  1. All Non-Public Information is Sensitive

    Any information that is not generally available to the public that relates to the Company or the Company’ customers, employees, vendors, contractors, service providers, Systems, etc., that you receive or to which you are given access during your employment or while you are performing services for the Company is classified as “Confidential” or “Internal Use Only” under the Macy’s Information Security Policy. As is set forth

    in the Macy’s Information Security Policy, internal access to Confidential Information should only be granted on a “need to know” basis, and such information should not be shared with third parties without prior approval from your Company supervisor and consultation with the Law Department.

    . . .

  2. Use and Protection of Personal Data

    Company maintains certain information regarding its present and former associates, customers and vendors. Company respects the privacy of this data where it includes personally-identifiable information (“Personal Data”). Personal Data includes names, home and office contact information, social security numbers, driver’s license numbers, account numbers and other similar data. Company is committed to handling Personal Data responsibly and using it only as appropriate for legitimate business purposes. This commitment requires that all Company employees, contractors, and third parties who are granted access to Personal Data by Company follow all policies adopted by the Company for the protection of such data against unauthorized use, disclosure or access. Such policies, including those set forth in the Macy’s Information Security Policy, may vary depending on the sensitivity of the Personal Data at issue.

    Personal Data may not be shared with any third party without the written approval of your senior Sales Promotion executive or, for support organizations, your Chief Executive Officer.

    Judge’s Decision

    As pertinent here, the judge found that the rules violate Section 8(a)(1) insofar as they restrict the use of information regarding customers. He reasoned that employees have a Section 7 right to communicate with customers regarding matters affecting their employment, and he found that the rules were unlawful because they restrict such communications.

    Analysis

    “In determining whether a work rule violates Section 8(a)(1), the appropriate inquiry is whether the rule would reasonably tend to chill employees in the exercise of their Section 7 rights.” Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. mem. 203 F.3d 52 (D.C. Cir. 1999). If the rule explicitly restricts Section 7 rights, it is unlawful. Lutheran Heritage Village-Livonia, 343 NLRB 646, 646 (2004). If it does not, “the violation is

    MACY’S, INC. 3

    dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Id. at 647.3 There is no allegation in this case that the rules at issue explicitly restrict Section 7 rights, have been promulgated in response to union activity, or have been applied to restrict the exercise of Section 7 rights, so the question is whether employees would reasonably understand the rules to restrict Section 7 activity.

    As the judge observed, employees indisputably have a Section 7 right to concertedly appeal to their employer’s customers for support in a labor dispute. Trinity Protection Services, 357 NLRB 1382, 1383 (2011); Kinder-Care Learning Centers, 299 NLRB 1171, 1171–1172 (1990).4 Contrary to the judge, however, the disputed

    3 Chairman Miscimarra agrees that the rules are lawful under Lutheran Heritage Village for the reasons articulated in the text. However, for the reasons explained in his separate opinion in William Beaumont Hospital, 363 NLRB No. 162, slip op. at 7–24 (2016) (Member Miscimarra, concurring in part and dissenting in part), he believes...

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