NLRB Advice Memoranda, Amazon.com Services, LLC, National Labor Relations Board, (Jan 12, 2023)

This case was submitted for advice as to whether a confidentiality requirement in the Employer's voluntary internal appeals process, in place to safeguard the privacy interests of appellant-employees, is facially overbroad in violation of Section 8(a)(1) of the Act. We conclude that it is not unlawfully overbroad, and that the allegation should be dismissed absent withdrawal.

Amazon.com Services, LLC (“the Employer”) operates websites that offer various products for sale many of which are packaged and shipped from it warehouses, called Fulfillment Centers, located throughout the United States. This case involves the Employer's Fulfillment Center in Orlando, Florida. Although the Employer does not have a collective bargaining relationship with any union at its Orlando facility, it does maintain an internal appeals process through which employees employed for at least 90 days may challenge final written warnings or discharges. The appeals process gives appellants the choice of having their appeal of these adverse actions reviewed by either senior site leadership (e.g., general manager or assistant general manager) or a panel consisting of three of the appellants' peers and two managers. Employee participation on these panels is entirely voluntary. The provisions governing the appeals process state that employees who previously volunteered to serve as panelists may decline to do so if their name is selected for an appeal involving a matter for which they have “personal involvement or conflict of interest.” The provisions also include a requirement that all panelists maintain complete confidentiality before, during, and after the hearing, and that a violation of confidentiality by any panelist will result in permanent disqualification from serving as a panelist again and potential disciplinary action up to and including termination. The panelist acceptance form, which employees are required to sign to be a panelist, states that panelists must “maintain complete confidentiality about personal and appellant-specific information to which I am exposed as a panel member.”

In ​     ​ 2020, the Employer discharged the Charging Party, after which ​     ​ filed an internal appeal opting for review by a panel of three of ​     ​ ( peers and two managers. ​     ​ also filed a charge in Case 12-CA-264585 alleging ​     ​ was discharged in violation of Section 8(a)(1), which the Region dismissed. [1] The panel rejected ​     ​ appeal, making ​     ​ discharge final. In the current charge, the Charging Party alleges that the confidentiality requirement imposed on employees who volunteer to serve as appeals panelists is unlawfully overbroad.

Initially, applying the analytical framework in Boeing Co., 365 NLRB No. 154, slip op. at 3, 14 (2017), we conclude that the confidentiality rule here is not unlawfully overbroad. [2] Specifically, the confidentiality rule here is a lawful Category 1(a) rule under Boeing because, in context, a reasonable employee would not interpret it to interfere with the exercise of Section 7 rights. The rule applies only to employees who have volunteered to temporarily serve as a panelist reviewing the Employer's decision to either discharge or issue a final written warning to a coworker. Thus, the rule does not apply to employees in the normal course of their work activity and associations but only when they volunteer to take on the temporary managerial function of serving on the appeals panel, which is the alternative to requesting review from the facility's general manager, assistant general manager, or other senior site leadership. In that context, employees would not reasonably interpret the rule as prohibiting Section 7 activity because it is limited to information they obtain outside of their normal work activity and to which only Employer officials would otherwise be privy. Thus, the confidentiality rule here is similar to those the Board has found lawful that prohibit employees from disclosing, for example, “employee information” or confidential information about “fellow employees” in the employer's files. See Argos USA, LLC d/b/a Argos Ready Mix, LLC, 369 NLRB No. 26, slip op. at 2-3 (2020) (finding rule prohibiting disclosure of employer's “earnings” and “employee information” lawful because included in list of other categories of obviously proprietary information); Motor City Pawn Brokers, 369 NLRB No. 132, slip op. at 2, 5 (2020) (find confidentiality rule in employee handbook lawful; rule prohibited employees from disclosing “confidential or proprietary information of the [c]ompany, its customers or fellow employees”). As the Board has explained, reasonable employees would understand that such rules do not extend to “other terms and conditions of employment that would be generally known or accessible from sources other than ‘confidential [c]ompany information.’” See Argos USA, LLC d/b/a Argos Ready Mix, LLC, 369 NLRB No. 26, slip op. at 2.

Indeed, it is also important to note that the confidentiality rule here does not apply to the employee appealing a final written warning or discharge decision. That individual remains free to discuss the circumstances leading to their discipline with anyone. Moreover, coworkers with knowledge of the circumstances leading to the discipline also would remain free to discuss them unless they volunteered to serve as panelists and were chosen for this appeal, which would indicate that they were not interested in exercising any Section 7 rights over the matter. [3] Based on all the foregoing considerations, employees would not reasonably construe this rule to prohibit Section 7 activity.

At the same time, the rule here does not raise the potential for interfering with Section 7 rights in the following contexts:

• Because, as just noted, the confidentiality requirement at issue in the instant case is not being placed on the employees appealing the adverse action, it is unlike the situation addressed in California Commerce Club, Inc., 369 NLRB No. 106, slip op. at 4 (2020), and Dish Network, 370 NLRB No. 97, slip op. at 3 (2021). [4] In those two cases, the Board held that provisions in mandatory arbitration agreements requiring employees to keep confidential information they learned during the arbitration of employment-related claims, as opposed to information obtained independent of the arbitral proceeding, are lawful. Unlike an employee who may be constrained by such a confidentiality requirement in an arbitration agreement, which may interfere with their ability to secure witnesses or discuss their terms and conditions of employment with co-workers, employee-appellants here are not confronted with the same concern. Again, only employees who have voluntarily placed themselves in the temporary management role on an appeals panel are subject to the rule.

• The Employer's creation of the appeals panel here is not the same as the employee representation committee the employer created in T-Mobile USA, 372 NLRB No. 4, slip op. at 7-8 (2022), and which the Board found to be an employer dominated and supported labor organization that violated Section 8(a)(2). Unlike in T-Mobile, employees who volunteer to serve on the appeals panel neither constitute a labor organization nor “deal with” the Employer over working conditions. They do not represent other employees but simply serve the temporary, limited function of reviewing whether the Employer properly applied a work policy leading to the final written warning or discharge of a coworker.

• Nor is there a concern that this rule is an unlawful investigative confidentiality rule that restrains employee Section 7 rights. We do not view the Employer's internal appeals process as part of its investigation of misconduct. The workplace investigation leading to the Charging Party's discharge had been completed by the time ​     ​ invoked the appeals process. Thus, the confidentiality rule here is not subject to the Board's decision in Apogee Retail, LLC d/b/a Unique Thrift Store, 368 NLRB No. 144, slip op. at 2 n.3, 8-9 (2019) (finding rules prohibiting employees who report misconduct or are interviewed as part of a workplace investigation from discussing the investigation or interview to be lawful to extent they are limited to the duration of the investigation). [5] Thus, it is also irrelevant that the confidentiality requirement placed on panelists extends beyond the conclusion of the appeals hearing.

• The Employer has not applied this confidentiality rule to restrict the exercise of Section 7 activity. Indeed, the allegation here is solely whether the rule is facially unlawful.

Finally, to the extent a policy consideration may be relevant to this analysis, it would support interpreting this rule to not be overbroad. The Employer is under no obligation to have this or any other procedure in place for employees to challenge final warnings or discharges. However, such peer review panels are recognized as providing employees a measure of due process even in nonunionized workplaces. Finding a rule to be overbroad where it protects the privacy interests of employees who choose to make use of an otherwise lawful procedure to challenge adverse actions is, at best, counterintuitive, and, at worst, likely to result in this Employer simply eliminating the procedure (as would other employers who offer their employees a similar appeal process).

Based on all the above considerations, the Region should dismiss the charge allegation absent withdrawal. This email closes the case in Advice. Please let us know if you have any questions or concerns.