On April 26, the National Labor Relations Board ruled that certain Target Corp. policies were overly broad and violated sections of the National Labor Relations Act (NLRA). The Board ordered Target to post notices of its violations and to distribute revised policies at its stores nationwide.
Generally, an employer may prohibit solicitation by employees during working time and in working areas, but not on break time in non-work areas. The Board found that Target had an otherwise lawful policy prohibiting solicitation, including distribution of literature, during working time and in working areas, but that the policy contained additional language that was overly broad. Specifically, the policy said, in part, that “conducting monetary transactions” for “personal profit” or “commercial purposes” was prohibited at all times on Target premises. The Board objected to use of the phrase “for commercial purposes.” Viewed in isolation, the Board said this phrase appears to address only solicitation and distribution for the sale of goods or services. But, when viewed in conjunction with Target’s ban on activities for “personal profit,” this phase might cause employees to believe that the policy prohibited solicitation and distribution for other organizations, including unions.
The Board’s decision also reinforced that employers may not promulgate or enforce confidentiality policies that prohibit employees from discussing wages, benefits, and employment conditions.
Citing the recent Noel Canning decision finding President Obama’s January 2012 Board appointments unconstitutional, Target argued that the Board did not have a quorum to decide this case. Rejecting this argument, the Board said that until that issue is resolved in litigation, it would continue to fulfill its responsibilities.
This case is another example of the Board’s aggressive stance towards employers. MSEC can assist members with reviewing their confidentiality and non-solicitation policies for compliance with Board guidance.