368 NLRB No. 96
National Indemnity Company
368 NLRB No. 96
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive 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.
National Indemnity Company and Bruce Richard
Friedman. Case 14–CA–182175
December 18, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On November 20, 2017, Administrative Law Judge
Elizabeth M. Tafe issued a decision in this case. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
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 conclusions1
only to the extent consistent with this Decision and Or-
der.2
I. BACKGROUND
The Respondent is an insurance company headquar-
tered in Omaha, Nebraska. It has maintained several
rules requiring that employees preserve the confidentiali-
ty of certain information. Since at least 2015, the Re-
spondent has maintained a Code of Business Conduct
and Ethics (Code of Conduct). On January 1, 2016, the
Respondent distributed this Code of Conduct to employ-
ees and placed it on its intranet. Paragraph 5 of the Code
of Conduct states:
Covered Parties must maintain the confidentiality of
confidential information entrusted to them, except
when disclosure is authorized by an appropriate legal
officer of the Company or required by laws or regula-
tions. Confidential information includes all non-public
information that might be of use to competitors or
harmful to the Company or its customers if disclosed.
It also includes information that suppliers and custom-
ers have entrusted to the Company. The obligation to
preserve confidential information continues even after
employment ends.
1 We have amended the judge’s conclusions of law consistent with
our findings herein.
2 In the absence of exceptions, we adopt the judge’s findings that
the Respondent violated Sec. 8(a)(1) by maintaining its Confidentiality
Agreement and accompanying memorandum known as the Wurster
Memo. The Respondent has excepted to the judge’s order regarding
these violations. For the reasons discussed herein, we shall modify the
judge’s recommended Order mandating rescission of the Confidentiali-
ty Agreement. We shall also modify the recommended Order to con-
form to our findings and to the Board’s standard remedial language.
Since at least 2009, the Respondent has required em-
ployees to sign a Confidentiality Agreement. The Confi-
dentiality Agreement restricted disclosure of several
types of information the Respondent deemed confiden-
tial, including “personnel information.” The Respondent
updated its Confidentiality Agreement on December 20,
2016, deleting “personnel information” from the catego-
ries of information deemed confidential. It also added
language specifically informing employees that “nothing
in this Confidentiality Agreement” prohibits them from
discussing “wages, benefits, hours, or other terms and
conditions of employment,” and further stating that
“[e]mployees have the right to engage in or refrain from
engaging in such activities to the extent protected by
law.” The Respondent distributed the updated Confiden-
tiality Agreement to its employees by email on Decem-
ber 20, 2016.
Finally, from July 21, 2009, to December 20, 2016, a
memorandum signed by the Respondent’s president,
Donald Wurster (the Wurster Memo), was distributed
with the Confidentiality Agreement. The Wurster Memo
emphasized the importance of preserving the confidenti-
ality of confidential information the Respondent creates
and information it receives from others, including “in-
formation relating to our employees” and “our employ-
ees’ proprietary or private information.” The Respond-
ent stopped distributing the Wurster Memo when it be-
gan distributing its revised Confidentiality Agreement in
December 2016, but it did not notify employees who had
received the Memo that it was no longer operative.
The judge found all three of the policies above—
paragraph 5 of the Code of Conduct, the Confidentiality
Agreement, and the Wurster Memo—unlawful under
Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004). Subsequent to the judge’s decision, the Board
overruled Lutheran Heritage in relevant part in Boeing
Co., 365 NLRB No. 154 (2017). The Respondent has
excepted to the judge’s finding that the Code of Conduct
was unlawful, arguing the Code was lawful under both
Lutheran Heritage and Boeing. The Respondent does
not except to the judge’s finding that the Confidentiality
Agreement and Wurster Memo were unlawful, but it
does argue that the judge erred in ordering rescission of
those documents. In response, the General Counsel
maintains the Code of Conduct violates the National La-
bor Relations Act (Act) under Boeing and argues that the
judge’s order to rescind the Confidentiality Agreement
and Wurster Memo is necessary to effectuate the remedi-
al purposes of the Act.
For the reasons set forth below, we find that the Code
of Conduct is lawful under a Boeing analysis. We also
agree with the Respondent that a remedial order to re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2
scind the Confidentiality Agreement is unnecessary, but
a rescission order for the Wurster Memo is necessary.
II. ANALYSIS
A. Legal Standard
In Boeing, the Board held that “when evaluating a fa-
cially neutral policy, rule or handbook provision that,
when reasonably interpreted, would potentially interfere
with the exercise of NLRA rights, the Board will evalu-
ate two things: (i) the nature and extent of the potential
impact on NLRA rights, and (ii) legitimate justifications
associated with the rule.” Boeing, above, slip op. at 3
(emphasis in original). In conducting this evaluation, the
Board will strike the proper balance between the asserted
business justifications and the invasion of employees’
rights in light of the Act and its policies, focusing on the
perspective of the employees. Id. “As the result of this
balancing . . . the Board will delineate three categories”
of work rules:
Category 1 will include rules that the Board designates
as lawful to maintain, either because (i) the rule, when
reasonably interpreted, does not prohibit or interfere
with the exercise of NLRA rights; or (ii) the potential
adverse impact on protected rights is outweighed by
justifications associated with the rule. . . .
Category 2 will include rules that warrant individual-
ized scrutiny in each case as to whether the rule would
prohibit or interfere with NLRA rights, and if so,
whether any adverse impact on NLRA-protected con-
duct is outweighed by legitimate justifications.
Category 3 will include rules that the Board will desig-
nate as unlawful to maintain because they would pro-
hibit or limit NLRA-protected conduct, and the adverse
impact on NLRA rights is not outweighed by justifica-
tions associated with the rule.
Id., slip op. at 3–4 (emphasis in original).3 However, these
categories “will represent a classification of results from the
Board’s application of the new test. The categories are not
part of the test itself.” Boeing, above, slip op. at 4 (empha-
sis in original).
3 We note that in LA Specialty Produce Co., 368 NLRB No. 93, slip
op. at 2 fn. 2 (2019), the Board recently redesignated the subdivisions
of Boeing Category 1 as (a) and (b).
B. Respondent’s Code of Business Conduct and Ethics
As noted above, the paragraph of the Respondent’s
Code of Conduct alleged to be unlawful requires em-
ployees to “maintain the confidentiality of confidential
information entrusted to them,” specifically including
“all non-public information that might be of use to com-
petitors or harmful to the Company or its customers if
disclosed” and “information that suppliers and customers
have entrusted to the Company.” The judge conceded
that the Code of Conduct did not specifically designate
as confidential terms and conditions of employment or,
more generally, employee information. Nevertheless, the
judge found the language “vague and overly broad” be-
cause it required that “all non-public information” be
treated as confidential. We reverse the judge’s conclu-
sion that the Respondent’s Code of Conduct is unlawful.
We agree with the judge that employees have a Section
7 right to discuss, for the purpose of mutual aid or pro-
tection, their terms and conditions of employment among
themselves and with the public. See Eastex, Inc. v.
NLRB, 437 U.S. 556, 565–566 (1978); Kinder-Care
Learning Centers, 299 NLRB 1171, 1171–1172 (1990).
However, we fail to see how the Code of Conduct affects
that right. Paragraph 5 of the Code of Conduct does not
mention employees’ terms and conditions of employ-
ment, much less restrict their discussion with anyone.
Instead, it requires employees to maintain the confidenti-
ality of “confidential information entrusted to them,”
defined to include “all non-public information that might
be of use to competitors or harmful to the Company or its
customers if disclosed” and “information that suppliers
and customers have entrusted to the Company.” Reason-
ably interpreted from “the perspective of an objectively
reasonable employee who is ‘aware of his legal rights but
who also interprets work rules as they apply to the eve-
rydayness of his job,’”4 paragraph 5 refers to information
contained in the Respondent’s own confidential records
or that the Respondent otherwise may lawfully conceal.
See Macy’s, Inc., 365 NLRB No. 116, slip op. at 4
(2017) (citing International Business Machines Corp.,
265 NLRB 638 (1982)). Indeed, the rule at issue here is
substantively similar to the rule found lawful in Macy’s,
which required employees to keep confidential “any in-
formation, 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.” Macy’s, above,
slip op. at 2–4; see also LA Specialty Produce Co.,
above, slip op. at 3-4 (finding rule that requires employ-
4 Boeing, above, slip op. at 3 fn. 14 (Member Kaplan) (quoting T-
Mobile USA, Inc. v. NLRB, 865 F.3d 265, 271 (5th Cir. 2017)).
NATIONAL INDEMNITY CO.
3
ees to protect confidential and proprietary client/vendor
lists lawful, citing Macy’s, above). Accordingly, we
reach the same result here.5
We therefore reverse the
judge’s decision and dismiss this allegation.
We have found that paragraph 5 of the Code of Con-
duct is lawful because it does not, when reasonably in-
terpreted, interfere with the exercise of Section 7 rights.
Further, we designate rules that require employees to
maintain the confidentiality of non-public information
that, if disclosed outside the company, could harm the
company or its customers or benefit its competitors as
Boeing Category 1(a) rules that are lawful to maintain
“because, when reasonably interpreted, they would have
no tendency to interfere with Section 7 rights and there-
fore no balancing of rights and justifications is warrant-
ed.” Boeing, above, slip op. at 5. However, to qualify
for Category 1(a), such a rule must either (1) omit from
coverage, expressly or implicitly, wages, salaries, and
other terms or conditions of employment or, more gener-
ally, employee or personnel information, or (2), if it in-
cludes wage or salary information, make it clear that the
information referred to is limited to data maintained and
only accessible in the employer’s confidential records.
C. Amended Remedy
While the Respondent has not excepted to the judge’s
finding that the Confidentiality Agreement and Wurster
Memo violate the Act, it has excepted to the judge’s
remedy and recommended order for these violations.
The judge ordered the Respondent to rescind or revise
the Confidentiality Agreement and Wurster Memo. The
Respondent argues that its distribution of a revised Con-
fidentiality Agreement without the accompanying
Wurster Memo makes these remedies unnecessary. We
agree in part, and we have revised the Order and notice
to more accurately reflect the particular facts of this case.
To begin with, we find it unnecessary to order rescis-
sion of the Confidentiality Agreement. In most cases
involving unlawful work rules, the rule is still in effect
5 In finding paragraph 5 of the Code of Conduct unlawful, the judge
reasoned that the breadth of the language—requiring the confidentiality
of “all” non-public information that could harm the Respondent—
imposed on the Respondent a duty to “clarify” that “proscribed behav-
ior does not include discussion” of terms and conditions of employ-
ment. We reject this circular reasoning. The Respondent need not
clarify that it has not interfered with Sec. 7 rights where it has not inter-
fered with Sec. 7 rights.
We also reject the judge’s reliance on paragraph 6 of the Code of
Conduct, entitled “Protection and Proper Use of Company Assets,” to
find the confidentiality provision in paragraph 5 unlawful. Paragraph 6
lists “salary information” as “proprietary information” whose
“[u]nauthorized use or distribution . . . would violate Company poli-
cy.” The lawfulness of paragraph 6 is not at issue in this matter, and
accordingly, we do not rely upon it in determining the lawfulness of
par. 5.
when the Board issues its order; accordingly, in such
cases the order requires the employer to rescind or revise
the unlawful rule, and the remedial notice states that the
employer will rescind or revise the rule. Here, however,
on December 20, 2016, the Respondent distributed a re-
vised Confidentiality Agreement that explicitly affirmed
employees’ right to discuss their terms and conditions of
employment.6 We find that by doing so, the Respondent
replaced and effectively rescinded the Confidentiality
Agreement. Accordingly, we have substituted a new
notice to reflect that although the prior Confidentiality
Agreement was unlawful, that Agreement has been re-
scinded. See Lily Transportation Corp., 362 NLRB 406,
406–408 (2015).7
We will nevertheless order the rescission of the Wurst-
er Memo. Although the Respondent did not distribute
the Wurster Memo when it distributed the revised Confi-
dentiality Agreement, it has not distributed a revised,
lawful memorandum. Merely ceasing distribution of an
unlawful work rule, without more, is insufficient to re-
scind the unlawful rule. As to the Wurster Memo, there-
fore, we will provide the standard remedy for mainte-
nance of an unlawful rule and word the remedial notice
accordingly.8
AMENDED CONCLUSIONS OF LAW
Delete paragraph 2(a) and renumber the subsequent
paragraphs of the judge’s Conclusions of Law according-
ly.
6 The judge recognized that employees would not interpret the lan-
guage of the revised Confidentiality Agreement to limit their Sec. 7
rights. Nevertheless, she found the revised Confidentiality Agreement
unlawful because of the prior, unlawful Confidentiality Agreement.
The General Counsel did not allege that the revised Confidentiality
Agreement violates the Act. Therefore, we reject the judge’s finding.
7
Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10
(2019), is distinguishable. There, we ordered the respondent to rescind
its Mediation and Arbitration Agreement (M & AA), which unlawfully
interfered with employees’ right to file charges with the Board, not-
withstanding its subsequent issuance of a Mutual Agreement to Arbi-
trate (MAA) that added language preserving that right. Id., slip op. at
7. In that case, however, the M & AA specified an exclusive procedure
for its revocation, and there was no evidence that this procedure was
ever followed. Id. Moreover, the respondent in Prime Healthcare
continued to insist on the legality of the M & AA. Id. Here, in con-
trast, the original Confidentiality Agreement did not specify any partic-
ular procedure for its revocation, and the Respondent does not except to
the judge’s finding that the original Agreement was unlawful.
8 Because we have found that the Respondent failed to rescind the
Wurster Memo for the reasons stated above, we do not reach the
judge’s finding that the Respondent failed to satisfy the requirements
outlined in Passavant Memorial Area Hospital, 237 NLRB 138, 138
(1978), and we do not pass on whether those requirements represent a
proper standard for effective repudiation of unlawful conduct.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4
ORDER
The National Labor Relations Board orders that the
Respondent, National Indemnity Company, Omaha, Ne-
braska, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining the provision in the Confidentiality
Agreement that defines “confidential information” to
include “personnel information.”
(b) Maintaining the memorandum accompanying the
Confidentiality Agreement that contains the following
language: “All of us have a common interest and obliga-
tion to assure that no one discloses in an unauthorized
manner confidential information of . . . our employees,”
and “[t]his Agreement will . . . protect our company
against violation of a contract or disclosure of our own
confidential information . . . or employees’ proprietary or
private information.”
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the memorandum referred to in paragraph
1(b) above or revise it to remove any language that pro-
hibits conduct protected by Section 7 of the Act.
(b) Notify all employees that the memorandum has
been rescinded or, if it has been revised, provide them a
copy of the revised memorandum.
(c) Within 14 days after service by the Region, post at
all of its facilities nationwide copies of the attached no-
tice marked “Appendix.”9 Copies of the notice, on forms
provided by the Regional Director for Region 14, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
the notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If, during the pendency of these pro-
ceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since February 15, 2016.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. December 18, 2019
______________________________________
John F. Ring,
Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel
Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
On December 20, 2016, we distributed to you a new
Confidentiality Agreement. That new Confidentiality
Agreement revised the previous Confidentiality Agree-
ment to eliminate language designating “personnel in-
formation” as confidential. The National Labor Rela-
tions Board has now found that the language in the prior
NATIONAL INDEMNITY CO.
5
Confidentiality Agreement designating “personnel in-
formation” as confidential was unlawful.
WE WILL NOT maintain a provision in the Confidential-
ity Agreement that defines “confidential information” to
include “personnel information.”
WE WILL NOT maintain a memorandum accompanying
the Confidentiality Agreement that contains the follow-
ing language: “All of us have a common interest and
obligation to assure that no one discloses in an unauthor-
ized manner confidential information of . . . our employ-
ees,” and “[t]his Agreement will . . . protect our company
against violation of a contract or disclosure of our own
confidential information . . . or employees’ proprietary or
private information.”
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE HAVE rescinded the Confidentiality Agreement that
contained the unlawful language, and we distributed a
revised Confidentiality Agreement without the unlawful
language on December 20, 2016.
WE WILL rescind the memorandum that accompanied
the Confidentiality Agreement or revise it to remove the
unlawful language.
NATIONAL INDEMNITY COMPANY
The
Board’s
decision
can
be
found
at
www.nlrb.gov/case/14-CA-182175 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Julie M. Covel, Esq., for the General Counsel.
Patrick J. Barrett, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
ELIZABETH M. TAFE, Administrative Law Judge. This case
was tried in Council Bluffs, Iowa on March 21, 2017. The
hearing was adjourned until March 27, 2017, when I resumed
the hearing by telephone conference and closed the record.
The Charging Party, Bruce Friedman, filed the charge on
August 15, 2016,1 the first amended charge on September 1,
and the second amended charge on November 16. The General
Counsel issued the complaint on November 30 alleging that the
Respondent violated Section 8(a)(1) of the Act by maintaining
certain confidentiality rules that discouraged and prohibited
employees from discussing wages, hours, or other terms and
conditions of employment.2 The Respondent timely answered
the complaint, admitting maintenance of the rules alleged, but
denying all wrongdoing.
The parties were given a full opportunity to participate in the
hearing, to introduce relevant evidence, to call, examine and
cross-examine witnesses, and to file briefs. On the entire rec-
ord,3 and after considering the briefs filed by the Respondent
and the General Counsel, I make the following findings, con-
clusions of law, and recommended remedy and order.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, sells property and casualty
insurance policies at its facility in Omaha, Nebraska, where it
annually receives insurance premiums payments valued in ex-
cess of $500,000, of which at least $50,000 represents premi-
ums received from policyholders located outside the State of
Nebraska. The Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent, National Indemnity Company, is a proper-
ty and casualty insurer with its principal place of business in
Omaha, Nebraska. It is a wholly-owned subsidiary of Berk-
shire Hathaway Inc. (Berkshire), a publicly traded company.
(Jt. Exh. 1). The parties stipulated that Berkshire is not a party
to this case. (Jt. Exh. 1).
The parties stipulated that the relevant time period set forth
in the complaint is February 15, 2016 through the filing of the
complaint. (Jt. Exh. 1).
B. Respondent’s Confidentiality Rules
The complaint alleges that maintaining certain confidentiali-
ty rules violates Section 8(a)(1) of the Act, because the rules
1 All dates are in 2016 unless otherwise indicated.
2 On March 27, 2017, I granted the General Counsel’s unopposed
motion to amend the complaint by withdrawing complaint paragraphs
4(a) and 4(b). I also granted the General Counsel’s motion to strike the
partial testimony of Friedman over the Respondent’s objections, as it
was incomplete and no longer material to the issues in the case. Ac-
cordingly, this decision does not address the substance of the with-
drawn allegations. Although I allowed Counsel for the Respondent to
make an offer of proof related to what Friedman’s testimony was ex-
pected to show as Counsel asserted a need to preserve an appeal right,
in permitting the offer of proof, I have made no findings or conclusions
regarding what, if anything, Friedman’s stricken testimony would have
established.
3 As a result of my granting the motion to strike the incomplete tes-
timony of Friedman, the record contains no testimonial evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6
have a tendency to discourage or prevent employees from dis-
cussing their wages, hours, and other terms and conditions of
employment. The Respondent asserts that the rules do not vio-
late the Act, and, moreover, that certain rules have been
changed in a manner that clarifies their lawfulness.4
1. Respondent’s Code of Business Conduct and Ethics
Berkshire adopted a Code of Business Conduct and Eth-
ics.5 The Respondent has adopted a substantially similar Code
of Business Conduct and Ethics (the Code of Conduct) (Jt.
Exh. 2). The Respondent distributed its Code of Conduct to
employees about January 1, 2016 by email, and placed it on
its intranet. The 4-page Code of Conduct has not been revised
since August 2015. (Jt. Exh. 1). The Code of Conduct defines
“Covered Parties” to include the Respondent’s “directors, of-
ficers, and employees.” The Code of Conduct contains the fol-
lowing language at pages 2 to 3:6
5. Confidentiality.
Covered Parties must maintain the confidentiality of confi-
dential information entrusted to them, except when disclosure
is authorized by an appropriate legal officer of the Company
or required by laws or regulations. Confidential information
includes all non-public information that might be of use to
competitors or harmful to the Company or its customers if
disclosed. It also includes information that suppliers and cus-
tomers have entrusted to the Company. The obligation to pre-
serve confidential information continues even after employ-
ment ends.
6. Protection and Proper Use of Company Assets.
All Covered Parties should endeavor to protect the Compa-
ny’s assets and ensure their efficient use. Theft, carelessness,
and waste have a direct impact on the Company’s profitabil-
ity. Any suspected incident of fraud or theft should be imme-
diately reported for investigation. The Company’s equipment
should not be used for non-Company business, though inci-
dental personal use is permitted.
The obligation of Covered Parties to protect the Company’s
assets includes its proprietary information. Proprietary infor-
mation includes intellectual property such as trade secrets, pa-
4 The Respondent further argues that the rationale set forth in
Chairman Miscimarra’s dissenting opinion in Cellco Partnership d/b/a
Verizon Wireless, 365 NLRB No. 38, slip op. at 4-7, 9-10 (2017),
which would overrule the standards set forth in Lutheran Heritage,
below, should be applied here. See also William Beaumont Hospital,
363 NLRB No. 162, slip op. at 7-24 (2016), Member Miscimarra, dis-
senting. However, I am obliged to apply the Board’s majority position
until or unless it is overruled by the Board or the Supreme Court.
5 The Respondent represents that Berkshire adopted a Code of Busi-
ness Conduct and Ethics to comply with Section 406 of the Sarbanes-
Oxley Act, Pub.L. 107-204, 116 Stat 745 (2002). There is no showing
on this record that the Respondent’s compliance with provisions of the
Sarbanes-Oxley Act conflicts in any way with its compliance with the
NLRA.
6 The General Counsel does not allege that paragraph 6 violates the
Act.
tents, trademarks, and copyrights, as well as business, market-
ing and service plans, engineering and manufacturing ideas,
designs, databases, records, salary information and any un-
published financial data and reports. Unauthorized use or dis-
tribution of this information would violate Company policy.
It could also be illegal and result in civil or criminal penalties.
2. Respondent’s Confidentiality Agreement
The Respondent’s employees are required to sign a Con-
fidentiality Agreement (Jt. Exh. 3). The Confidentiality Agree-
ment was first communicated to all employees about July 21,
2009. All employees were required to sign the Confidentiality
Agreement during the relevant time period (Jt. Exh. 1). The 1-
page Confidentiality Agreement maintained during the relevant
period defines “confidential information” to include “personnel
information.” It further requires employees to agree that they
understand that violations of the Confidentiality Agreement
could result in disciplinary action, including termination of
employment, in addition to civil damages and penalties im-
posed by law. (Jt. Exh. 3)
The Respondent revised its Confidentiality Agreement on
about December 20, 2016.7 The Respondent distributed it to
employees by email at the same time. (Jt. Exh. 1). The revised
Confidentiality Agreement deleted the word “personnel” from
its definition of “confidential information.” (Jt. Exh. 4). It also
included a new Paragraph 6 stating the following:
I understand that nothing in this Confidentiality Agreement
prohibits or is designed to interfere with, restrain, or prevent
employee communications regarding wages, benefits, hours,
or other terms and conditions of employment. Employees
have the right to engage in or refrain from engaging in such
activities to the extent protected by law.
3. Respondent’s Memorandum Accompanying the Confidenti-
ality Agreement
During the relevant time period, the Confidentiality Agree-
ment (Jt. Exh. 3) was distributed to employees with a Memo-
randum (Jt. Exh. 5) dated July 21, 2009 from and signed by the
Respondent’s President, Donald Wurster (the Wurster Memo).
Since December 20, 2016, the 1-page Wurster Memo has no
longer been provided to employees. The Wurster Memo con-
tains the following language:
In the course of our business, National Indemnity Company
and our affiliates create and receive from others a variety of
information in oral, written and electronic formats. We spend
considerable resources on systems research and software de-
velopment. We also develop other materials, such as under-
writing manuals and business analyses which are of critical
importance to our business. Our Human Resources depart-
ment maintains information relating to our employees, such as
evaluations, applications and insurance information. . . .
7 The updated confidentiality agreement is not alleged to violate the
Act.
NATIONAL INDEMNITY CO.
7
We regard the information we create and receive from others
as confidential and endeavor to keep it protected from unau-
thorized disclosure. In certain instances this is required by
law or contract. In other instances, the information is proprie-
tary and its disclosure to others would harm our business in-
terests.
As employees of National Indemnity Company, you may be
required to access and use confidential information to perform
your duties. All of us have a common interest and obligation
to assure that no one discloses in an unauthorized manner
confidential information of our company or our employees ,
insureds, claimants, agents or vendors. To ensure that this ob-
ligation is fulfilled, we undertake a number of actions to pro-
tect confidential information. . . .
. . . we are asking that every employee sign the attached Con-
fidentiality Agreement. (Translation: You are required to sign
it.) This Agreement will . . . protect our company against vio-
lation of a contract or disclosure of our own confidential in-
formation or our customers’ or our employees’ proprietary or
private information.
4. Respondent’s Recently Revised Employee Handbook.
The Respondent’s Employee Handbook was revised in about
December 2016, and was distributed to employees by email and
placed on the Respondent’s Intranet on about December 20. (Jt.
Exh. 1). Although not alleged to violate the Act, the revised
Employee Handbook is included in the record as Joint Exhibit
6. The revised Employee Handbook (Jt. Exh. 6) is 22 pages
long and states on page 6:
General Expectations
We seek to employ the most qualified people and recognize
that our employees are professionals and adults. Each em-
ployee is expected to adhere to all of the Company’s policies,
procedures, and rules of conduct and ethics. Violations by an
employee of any Company policies, procedures, or rules of
conduct or ethics may result in discipline up to and including
termination of employment.
Not every possible rule is included in the Employee Hand-
book or the Company Code of Business Conduct and Ethics.
Other situations or behaviors may also result in discipline up
to and including termination from employment. Each situa-
tion will be evaluated on a case-by-case basis. If you have any
doubts or questions concerning permissible behavior, you are
urged to discuss these matters with your supervisor, manager,
department head or Human Resources. Nothing contained in
this Handbook prohibits or is intended to prohibit employees
from discussing their wages or other terms and conditions of
employment. (emphasis in the original)
In addition to the Code of Conduct, the Handbook also refers to
the required Confidentiality Agreement.
ANALYSIS
A. Legal Framework
An employer violates Section 8(a)(1) of the Act when it
maintains workplace rules that would reasonably tend to chill
employees in the exercise of their Section 7 rights. See Lafa-
yette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d
52 (D.C. Cir. 1999). The analytical framework for assessing
whether maintenance of rules violates the Act is set forth in
Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).
Under Lutheran Heritage, a work rule is unlawful if “the rule
explicitly restricts activities protected by Section 7.” Id. at 646
(emphasis in original). If the work rule does not explicitly re-
strict protected activities, it nonetheless will violate Section
8(a)(1) if “(1) employees would reasonably construe the lan-
guage to prohibit Section 7 activity; (2) the rule was promul-
gated in response to union activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights.” Id. at 647;
see also Rio All-Suites Hotel and Casino, 362 NLRB No. 190
(2015). The mere maintenance of unlawful rules violates the
Act without regard for whether the employer ever applied the
rule for unlawful purposes. Rio All-Suites Hotel & Casino,
above, slip op. at 9. Further, when employers require employ-
ees to adhere to employment “agreements” as a condition of
employment, the Board construes the agreements as work rules
and considers them under the same framework as other work
rules. See, e.g., U-Haul Co. of California, 347 NLRB 375, 377
(2006), enfd. mem. 255 Fed. Appx. 527 (D.C. Cir. 2007) and
Rio All-Suites Hotel, above.
The confidentiality rules at issue here are not alleged to ex-
plicitly restrict protected activities or to have been promulgated
in response to or applied to restrict Section 7 activities. Thus,
the relevant inquiry is whether employees would reasonably
construe the challenged rules to prohibit Section 7 activity,
under the first prong of the Lutheran Heritage test, and there-
fore, whether the maintenance of the challenged rules is unlaw-
ful. In determining the lawfulness of rules, the Board must give
the rules a reasonable reading and avoid improper presumption
of unlawfulness; as such, work rules should be read in context
and not in isolation. Id. at 646. Rio All-Suites Hotel, above.
Ambiguity in a rule must be construed against the drafter, here,
the Respondent. Lafayette Park, above at 825; Rio All-Suites
Hotel, above.
When evaluating the lawfulness of confidentiality rules al-
leged to be overbroad, the Board specifically considers whether
employees would reasonably construe the rules to restrict their
Section 7 rights to discuss or disclose to other employees or the
public information about their wages, hours, and other working
conditions. Fresh & Easy Neighborhood Market, 361 NLRB
72, 73 (2014); Lafayette Park, above. The Board specifically
considers whether employees would reasonably construe the
confidentiality rules to restrict their Section 7 rights to discuss
or disclose their wages, hours, or other conditions of employ-
ment. Compare Flamingo Hilton-Laughlin, 330 NLRB 287
(1999) (rule prohibiting employees from revealing information
about other employees found unlawful) and G4S Secure Solu-
tions (USA), Inc., 364 NLRB No. 92 (2016) (rule prohibiting
disclosure of information considered proprietary by employer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8
or customers found lawful, where evidence did not establish
that the rule could reasonably be construed to include employee
information as proprietary information). An employer may
lawfully require confidentiality in appropriate circumstances;
however, the employer must attempt to minimize the impact of
such a rule on protected activity. Boeing Co., 362 NLRB No.
195, slip op. at 1 (2015). When the rule “fails to include ac-
companying language that would tend to restrict its applica-
tion,” employees reasonably may construe that the protected
activities are included in the prohibitions. Lily Transportation
Corp., 362 NLRB No. 54, slip op. at 1 and fn. 3.
B. Do the Challenged Rules Violate 8(a)(1)?
For the reasons discussed below, I find that the Respondent’s
maintenance of the challenged confidentiality rules set forth in
the Respondent’s Code of Conduct, its Confidentiality Agree-
ment, and the Wurster Memo, whether read individually or as
part of a comprehensive confidentiality policy, violate Section
8(a)(1) of the Act.
1. Respondent’s Code of Conduct
The challenged provision in the Code of Conduct (paragraph
5, entitled “Confidentiality”) is vague and overly broad such
that employees would reasonably assume it to encompass the
protected activity of discussing or disclosing their wages,
hours, and terms and conditions of employment. The provision
requires that employees “must maintain the confidentiality of
confidential information entrusted to them,” except when dis-
closure is authorized by Respondent’s legal officers or legally
required. It defines “confidential information” to include “all
non-public information that might be of use to competitors or
harmful to the [Respondent] or its customers if disclosed” and
to include “information that suppliers and customers have en-
trusted” to the Respondent. Although it does not mention em-
ployee information, the information is nonexclusive, and fails
to clarify the meaning, or to minimize the effects on protected
activity, such that employees would reasonably understand that
the proscribed behavior does not include discussion or disclo-
sure of wages, hours and other terms and conditions of em-
ployment. Cellco Partnership d/b/a Verizon Wireless, 365
NLRB No. 38, slip op. 1-3 (2017); Claremont Resort and Spa,
344 NLRB 832, 836 (2005). Ambiguity in this overly broad
rule is construed against the Respondent, so that employees are
not put in the untenable position of having to guess whether
engaging in protected activity would risk violating the overly
broad work rules. Lafayette Park, above; Rio All-Suites Hotel,
above.
Moreover, adjacent to this provision (paragraph 6, entitled
Protection and Proper Use of Company Assets, the Code of
Conduct provides a more detailed list of “proprietary infor-
mation” the unauthorized disclosure of which would violate
policy and could be illegal and result in civil or criminal penal-
ties. This list, which is still nonexclusive, includes, inter alia,
trade secrets, business, service and marketing plans, engineer-
ing and manufacturing ideas, designs, records, and unpublished
financial data and reports; it also explicitly includes “salary
information.” Alongside the overbroad confidentiality rule in
paragraph 5 of the Code of Conduct, read in context, the warn-
ing that disclosure of salary information could result in pun-
ishment confirms my finding that employees would reasonably
interpret the challenged confidentiality provision to limit their
Section 7 right to discuss and disclose their wages. The Re-
spondent’s use of the terms “private,” “confidential,” and “pro-
prietary” overlap in other documents in the record, which fur-
ther supports my conclusion that employees would have reason
to fear that discussing protected terms and conditions of em-
ployment might lead to discipline or other negative conse-
quences pursuant to this Code of Conduct.
2. Respondent’s Confidentiality Agreement
Employees were required to sign and adhere to the Confiden-
tiality Agreement (Jt. Exh. 3) from about July 2009 to at least
December 20, 2016. Although the record establishes that this
document is no longer distributed in the exactly the form of
Joint Exhibit 3, it does not establish whether or to what extent it
remains in effect. For example, the Confidentiality Agreement
asserts that employees are bound by its rules indefinitely, and
even after they have left the Respondent’s employment. The
Confidentiality Agreement defined “confidential information”
to include, inter alia, “personnel information.” It asserts that
violating the rule could result in discipline, including termina-
tion, as well as civil damages and penalties imposed by law.
This rule is overly broad, in that employees would reasonably
construe it to include limitations on their right to discuss or
disclose protected information about their wages, hours, and
other terms and conditions of employment. Here too, ambiguity
in the rule is construed against the Respondent as the drafter.
Lafayette Park, above at 825; Rio All-Suites Hotel, above. In
the absence of limiting language, a prohibition on disclosing
“personnel information” “in any location or medium except for
the advancement of the Company’s interests” and prohibiting
the usage of “personnel information” for employee’s own bene-
fit or for “the benefit of any person or entity except the Compa-
ny” chills employees’ protected discussions and violates Sec-
tion 8(a)(1).
On about December 20, the Respondent distributed a revised
confidentiality agreement that no longer contains “personnel
information” in the definition of confidential information. (Jt.
Exh. 4) It also includes a “savings clause” stating that
“…nothing in this [revised agreement] prohibits or is designed
to interfere with, restrain, or prevent employee communications
regarding wages, hours, or other terms and conditions of em-
ployment. Employees have the right to engage in or refrain
from engaging in such activities to the extent protected by law.”
The General Counsel does not allege that this revised confiden-
tiality agreement violates the Act. The Board generally does not
view such a disclaimer as correcting an unlawfully overly broad
rule. Here, if the revised agreement existed on its own, I would
find that the detailed description of confidential information,
none of which explicitly or impliedly includes wages, hours,
and working conditions, and considering that the disclaimer
language appears on the same 1-page document, would not
cause employees to reasonably construe the agreement to limit
their Section 7 rights. However, I note that the revised agree-
ment does not expressly supersede or replace the challenged
Confidentiality Agreement in a manner that would identify it to
employees as containing substantive changes. Therefore, in
NATIONAL INDEMNITY CO.
9
context, I cannot find that the revised agreement is lawful.
3. Memorandum Accompanying Confidentiality Agreement
The Wurster Memo is also overly broad, and violates Section
8(a)(1). Its description of the types of information the disclo-
sure of which is prohibited is in non-exhaustive terms and in-
cludes a reference to information maintained by the Respond-
ent’s Human Resources department, “such as evaluations, ap-
plications, and insurance information.” It uses the terms “confi-
dential,” “proprietary,” and “private” somewhat interchangea-
bly and without clarity about any purported differences in their
meanings, which contributes to an employee’s reasonable un-
derstanding that discussions or disclosure of protected infor-
mation, such as wages and other terms and conditions of em-
ployment, would be proscribed and punishable offenses. Lu-
theran Heritage, above. Further, after expressly stating that
employees are required to sign the confidentiality agreement,
the Wurster Memo explains, “[T]his Agreement will help you
understand your confidentiality obligations and protect our
company against violation of a contract or disclosure of our
own confidential information or our customers’ or employees’
proprietary or private information.” These overly broad pro-
scriptions would chill employees in engaging in protected ac-
tivity, such as discussing or disclosing their terms of employ-
ment with other employees or the public.
C. Has the Respondent cured unfair labor practices by revising
some rules?
On December 20, 2016, the Respondent issued the revised
confidentiality agreement and ceased distributing the Wurster
Memo. The Respondent also distributed a revised Employee
Handbook that contains a limitation in bold on page 6 of 22
under a section entitled “General Expectations” that “[n]othing
in this Handbook prohibits or is intended to prohibit employees
from discussing their wages or other terms and conditions of
employment.” The Handbook expressly replaces prior hand-
books, but does not expressly replace all other written policies,
such as the Code of Conduct or Confidentiality Agreement.
The Respondent argues that these changes absolve it of any
remedial obligation because it has cured any potential viola-
tions. I disagree.
The Board has long held that certain criteria must be met for
the Respondent to show that its repudiation of unlawful conduct
has been effective. The Respondent’s acts to cure a violation
must be (1) timely, (2) unambiguous, (3) specific to the unlaw-
ful conduct, and (4) taken in an environment free from other
proscribed conduct. Passavant Memorial Area Hospital, 237
NLRB 138 (1978). See also, DirecTV U.S. DirecTV Holdings
LLC, 362 NLRB No. 48 (2015), and Rivers Casino, 356 NLRB
1151, 1152 (2011). The Respondent must also provide suffi-
cient publication such that employees are made aware of the
repudiation and are assured that the Respondent will not con-
tinue to interfere with their Section 7 rights in the future.
Passavant, above. I agree with the General Counsel that the
Respondent has failed to meet its burden under Passavant.
First, the repudiation was untimely, in that the rules at issue had
been in effect for a substantial amount of time, the Confidenti-
ality Agreement and Wurster Memo since at least July 2009,
and the Respondent did not change them until after the com-
plaint issues in this case. See e.g., Passavant, above (repudia-
tion untimely where it occurred 7 weeks after an unlawful
threat), and Fresh & Easy Neighborhood Market, 361 NLRB at
75 fn. 3 (attempted repudiation untimely 2 years after violation
and 10 days before issuance of complaint). Second, the Re-
spondent failed to show that it either admitted any wrongdoing
or explained to employees that the import of the changes, such
that its actions cannot be construed as effective repudiation.
See, e.g., DirecTV U.S. DirecTV Holdings, above (no repudia-
tion found where employer failed to acknowledge unlawful
conduct), and Fresh & Easy Neighborhood Market, above
(same). Finally, there is no evidence that the Respondent actu-
ally publicized its purported repudiation to employees.
For all the above reasons, I find that the Respondent has vio-
lated Section 8(a)(1) of the Act as alleged in the complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. By the following conduct, the Respondent has violated
Section 8(a)(1) of the Act by maintaining work rules that dis-
courage or prohibit employees from engaging in protected con-
certed activity, including discussing and/or disclosing their
wages, hours, or other terms and conditions of employment:
(a) Maintaining the provision in Respondent’s Code of Busi-
ness Conduct and Ethics, entitled, “5. Confidentiality,” that
states, “Covered Parties must maintain the confidentiality of
confidential information entrusted to them, except when disclo-
sure is authorized by an appropriate legal officer of the Compa-
ny or required by laws or regulations. Confidential information
includes all non-public information that might be of use to
competitors or harmful to the Company or its customers if dis-
closed. It also includes information that suppliers and custom-
ers have entrusted to the Company. The obligation to preserve
confidential information continues even after employment
ends.”
(b) Maintaining the provision in the Respondent’s Confiden-
tiality Agreement in effect through December 20, 2016 that
defines “confidential information” to include “personnel infor-
mation.”
(c) Maintaining the memorandum accompanying the Confi-
dentiality Agreement in effect through December 20, 2016 that
contains the following language: “All of us have a common
interest and obligation to assure that no one discloses in an
unauthorized manner confidential information of . . . our em-
ployees . . .” and “This Agreement will . . . protect our compa-
ny against violation of a contract or disclosure of our own con-
fidential information . . . or our employees’ proprietary or pri-
vate information.”
3. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act. Having found that the Respondent main-
tains unlawful written confidentiality rules, the Respondent is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10
required to revise or rescind the unlawful rules. This is the
standard remedy to assure that employees may engage in pro-
tected activity without fear of being subjected to an unlawful
rule. See Guardsmark, LLC, 344 NLRB 809, 812 (2005), enfd.
in relevant part 475 F.3d 369 (D.C. Cir. 2007). As stated there,
the Respondent may comply with the order of rescission by
reprinting the Code of Conduct and Ethics, the Confidentiality
Agreement, and the memorandum accompanying the Confiden-
tiality Agreement without the unlawful language or, in order to
save the expense of reprinting the documents, it may supply its
employees inserts stating that the unlawful rules have been
rescinded or with lawfully worded rules on adhesive backing
that will correct or cover the unlawfully broad rules, until it
republishes documents without the unlawful provisions. Any
copies that include the unlawful rules must include the inserts
before being distributed to employees. Id. at 812 fn. 8. See also
Hills & Dales General Hospital, 360 NLRB 611, 613 (2014)
and Rio All-Suites Hotel, 362 NLRB No. 190, slip op. at 6
(2015).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, National Indemnity Company, Omaha, Ne-
braska,, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining rules that discourage or prohibit employees
from engaging in protected concerted activities including dis-
cussing and/or disclosing their wages, hours, or other terms and
conditions of employment, and specifically, maintaining the
following work rule provisions:
(i) The provision in Respondent’s Code of Business
Conduct and Ethics, entitled, “5. Confidentiality,” that
states, “Covered Parties must maintain the confidentiality
of confidential information entrusted to them, except when
disclosure is authorized by an appropriate legal officer of
the Company or required by laws or regulations. Confi-
dential information includes all non-public information
that might be of use to competitors or harmful to the Com-
pany or its customers if disclosed. It also includes infor-
mation that suppliers and customers have entrusted to the
Company. The obligation to preserve confidential infor-
mation continues even after employment ends.”
(ii) The provision in the Respondent’s Confidentiality
Agreement that defines “confidential information” to in-
clude “personnel information,” which was in use through
December 20, 2016.
(iii) The memorandum accompanying the Confidenti-
ality Agreement that contains the following language: “All
of us have a common interest and obligation to assure that
no one discloses in an unauthorized manner confidential
information of . . . our employees . . .” and “This Agree-
8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ment will . . . protect our company against violation of a
contract or disclosure of our own confidential information
. . . or our employees’ proprietary or private information,”
which was in use through December 20, 2016.
(b) In any like or related manner interfering with, coercing,
or restraining employees in the exercise of the rights guaranteed
them by the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the work rule provisions set forth in paragraph
1(a), above, or revise them to remove any language that prohib-
its or reasonably may be read to prohibit conduct protected by
Section 7 of the Act.
(b) Notify all employees that the above confidentiality rules
have been rescinded or, if they have been revised, provide them
a copy of the revised rules.
(c) Within 14 days after service by the Region, post at all of
its facilities nationwide copies of the attached notice marked
“Appendix.”9 Copies of the notice, on forms provided by the
Regional Director for Region 14 after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since February 15, 2016.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated at Washington, D.C., November 20, 2017
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
NATIONAL INDEMNITY CO.
11
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain work rules that discourage or prohibit
you from discussing or disclosing your wages, hours, or other
terms and conditions of employment.
WE WILL NOT maintain the provision in our Code of Business
Conduct and Ethics, entitled, “5. Confidentiality,” that states,
“Covered Parties must maintain the confidentiality of confiden-
tial information entrusted to them, except when disclosure is
authorized by an appropriate legal officer of the Company or
required by laws or regulations. Confidential information in-
cludes all non-public information that might be of use to com-
petitors or harmful to the Company or its customers if dis-
closed. It also includes information that suppliers and custom-
ers have entrusted to the Company. The obligation to preserve
confidential information continues even after employment
ends.”
WE WILL NOT maintain the provision in the Respondent’s
Confidentiality Agreement that defines “confidential infor-
mation” to include “personnel information,” which was in use
through December 20, 2016.
WE WILL NOT maintain the memorandum accompanying the
Confidentiality Agreement that contains the following lan-
guage: “All of us have a common interest and obligation to
assure that no one discloses in an unauthorized manner confi-
dential information of . . . our employees . . .” and “This
Agreement will . . . protect our company against violation of a
contract or disclosure of our own confidential information . . .
or our employees’ proprietary or private information,” which
was in use through December 20, 2016.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL rescind the provision in our Code of Business Con-
duct and Ethics, entitled, “5. Confidentiality,” that states, “Cov-
ered Parties must maintain the confidentiality of confidentialin-
formation entrusted to them, except when disclosure is author-
ized by an appropriate legal officer of the Company or required
by laws or regulations. Confidential information includes all
non-public information that might be of use to competitors or
harmful to the Company or its customers if disclosed. It also
includes information that suppliers and customers have entrust-
ed to the Company. The obligation to preserve confidential
information continues even after employment ends.”
WE WILL rescind the provision in the Respondent’s Confi-
dentiality Agreement that defines “confidential information” to
include “personnel information.”
WE WILL rescind the memorandum accompanying the Confi-
dentiality Agreement that contains the following language: “All
of us have a common interest and obligation to assure that no
one discloses in an unauthorized manner confidential infor-
mation of . . . our employees . . .” and “This Agreement will . . .
protect our company against violation of a contract or disclo-
sure of our own confidential information . . . or our employees’
proprietary or private information.”
WE WILL notify all employees that the above rules have been
rescinded or, if they have been revised, provide you a copy of
the revised rules.
NATIONAL INDEMNITY COMPANY
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/14-CA-182175 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.