Lowe's Home Centers, LLC

National Labor Relations Board - Board Decisions

Dec 12, 2019

368 N.L.R.B. 133 (N.L.R.B. 2019)

368 NLRB No. 133
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.
Lowe’s Home Centers, LLC and Amber Frare. Case
19–CA–191665
December 12, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On April 17, 2018, Administrative Law Judge Amita
Baman Tracy issued the attached decision. The Respond-
ent Lowe’s Home Centers, LLC, filed exceptions and a
supporting brief, the General Counsel filed an answering
brief, and the Respondent filed a reply brief.
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,1 and conclusions and to
adopt the recommended Order as modified and set forth in
full below.2
ORDER
The National Labor Relations Board orders that the Re-
spondent, Lowe’s Home Centers, LLC, Mill Creek, Wash-
ington, its officers, agents, successors, and assigns, shall

1 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by requiring employees to maintain the confidentiality of “salary
information,” Chairman Ring and Member Kaplan note that, in circum-
stances not present in this case, employers have a legitimate interest in
restricting employees’ unauthorized access to, and dissemination of, in-
formation stored in their employer’s confidential records, including sal-
ary information contained in such records. See, e.g., Asheville School,
Inc., 347 NLRB 877, 877 fn. 2 (2006) (finding lawful discharge of pay-
roll accountant who disclosed wage and salary information contained in
confidential records within her special custody); International Business
Machine Corp., 265 NLRB 638 (1982) (finding lawful discharge of em-
ployee for disclosing wage data employer had compiled and classified as
confidential). In this case, however, the Respondent’s limitation of cov-
ered proprietary information to information “entrusted” to employees
was insufficient to convey to a reasonable employee that the policy’s re-
striction on disclosure of salary information did not interfere with em-
ployees’ exercise of their core Sec. 7 right to engage in protected discus-
sion or disclosure of their own salaries, particularly given that the policy
was directed to all employees, not just those given access to the Respond-
ent’s confidential records. Indeed, for most employees without special
access to confidential records, the only salary information they could rea-
sonably view as “entrusted” to them under this policy is their own salary
information. Accordingly, they agree with the judge’s determination that
the rules at issue restricting the disclosure of salary information fall
within the scope of Boeing Category 3. See Boeing Co., 365 NLRB No.
154, slip op. at 4 (2017). They do not agree, however, with the judge’s
invocation of the principle that any ambiguity in a workplace rule is con-
strued against the drafter, a principle the Board in Boeing clearly re-
jected. See id., slip op. at 9–10 fn. 43, 13 fn. 68.
1. Cease and desist from
(a) Maintaining a Code of Business Conduct and Ethics
that requires employees to keep salary information confi-
dential.
(b) 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) To the extent it has not already done so, rescind the
section of the Code of Business Conduct and Ethics that
requires employees to keep salary information confiden-
tial, or revise it to limit that requirement to proprietary sal-
ary information maintained in its confidential records.
(b) Furnish employees with an insert for the current
Code of Business Conduct and Ethics that (1) advises that
the unlawful provision has been rescinded, or (2) provides
a lawfully worded provision on adhesive backing that will
cover the unlawful provision; or publish and distribute to
employees a revised Code of Business Conduct and Ethics
that (1) does not contain the unlawful provision, or (2) pro-
vides a lawfully worded provision.
(c) Within 14 days after service by the Region, post at
its facilities nationwide copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms pro-
vided by the Regional Director for Region 19, after being
signed by the Respondent’s authorized representative,
Member McFerran adheres to her dissent in Boeing Co., above, slip
op. at 29–44, but she agrees that the Respondent’s confidentiality policy
here is unlawful. Nothing in the policy or its surrounding context would
reasonably convey to employees that discussion of their own salary and
that of their coworkers is permitted or that the policy is addressed only
to maintaining the integrity and confidentiality of the Respondent’s busi-
ness records. See Mediaone of Greater Florida, Inc., 340 NLRB 277,
279 (2003) (“[D]iscussion of wages is part of organizational activity and
employers may not prohibit employees from discussing their own wages
or attempting to determine what other employees are paid.”) (citing In-
ternational Business Machines Corp., above); cf. Macy’s, Inc., 365
NLRB No. 116, slip op. at 1 (2017) (an employer may lawfully prohibit
disclosure of certain information obtained from its confidential records).
In Boeing’s terms, then, she agrees that the policy’s plain interference
with employees’ exercise of protected rights cannot be justified, and thus
the policy belongs in Boeing Category 3: always unlawful.
2 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language, and we shall substitute a new notice
to conform to the Order as modified.
In its brief, the Respondent maintains that it has already complied with
some of the terms of the judge’s recommended Order by rescinding the
policy at issue after the judge issued her decision. The legal effect of any
efforts by the Respondent to remedy the violation found by the judge
may be addressed in compliance. Cf. Postal Workers Local 735 (Postal
Service), 342 NLRB 545, 545 fn. 5 (2004)
3 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 National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
If 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 em-
ployed by the Respondent at any time since August 1,
2016.
(d) Within 21 days after service by the Region, file with
the Regional Director for Region 19 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. December 12, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, 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 vio-
lated 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 ac-
tivities.
WE WILL NOT maintain a Code of Business Conduct and
Ethics that requires you to keep salary information confi-
dential.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, to the extent we have not already done so, re-
scind the section of the Code of Business Conduct and
Ethics that requires employees to keep salary information
confidential, or WE WILL revise that section to limit the re-
quirement to proprietary salary information maintained in
our confidential records.
WE WILL furnish you with an insert for the current Code
of Business conduct and Ethics that (1) advises that the
unlawful provision has been rescinded, or (2) provides a
lawfully worded provision on adhesive backing that will
cover the unlawful provision; or WE WILL publish and dis-
tribute to you a revised Code of Business Conduct and
Ethics that (1) does not contain the unlawful provision, or
(2) provides a lawfully worded provision.
LOWE’S HOME CENTERS, LLC
The Board’s decision can be found at
www.nlrb.gov/case/19-CA-191665 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.
Mary Ana Hermosillo, Esq., for the General Counsel.
Robert T. Quackenboss, Esq. and Cullan Jones, Esq., for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
AMITA BAMAN TRACY, Administrative Law Judge. Lowe’s
Home Centers, LLC (Respondent) maintains nationwide two
versions of a confidentiality of information (Confidential Infor-
mation) rule in its original and revised Code of Business Conduct
and Ethics, to which its employees are bound. These Confiden-
tial Information rules prohibit employees from discussing salary
information, and employees face a variety of disciplinary actions
if they violate these rules. As discussed below, both versions of
LOWES HOME CENTERS, LLC 3
Respondent’s Confidential Information rule violate Section
8(a)(1) of the National Labor Relations Act (the Act).
In detail, the General Counsel alleges, in the April 27, 2017
complaint, and September 20, 2017 amended complaint, based
on a charge and amended charges filed by Amber Frare (Charg-
ing Party) on January 23 and 31, and February 1, 2017, that Re-
spondent violated Section 8(a)(1) of the Act by unlawfully main-
taining two versions of a Confidential Information rule in its
original and revised Code of Business Conduct and Ethics.1 Re-
spondent filed a timely answer and amended answer.
The parties originally filed a joint motion and stipulation of
facts on July 10, 2017 (Original Stipulation), but after orders
granting requests for extensions of time, on September 18, 2017,
the parties jointly requested to reopen the record which we
granted on September 20, 2017. On October 27, 2017, the par-
ties filed a revised joint motion and amended stipulation of facts
(Revised Stipulation), pursuant to Section 102.35(a)(9) of the
National Labor Relations Board’s (the Board) Rules and Regu-
lations, requesting that this case be decided without a hearing and
based on the stipulated record. On October 30, 2017, I granted
the revised joint motion and approved the amended stipulation
of facts via written order. Thereafter, the parties filed briefs on
December 4, 2017.
On December 15, 2017, due to the Board’s decision in Boeing
Co., 365 NLRB No. 154 (2017) (applying a new balancing test
to matters involving alleged unlawful employers’ rules retroac-
tively to all pending cases no matter the stage of litigation) over-
ruling portions of the standard set forth in Lutheran Heritage Vil-
lage-Livonia, 343 NLRB 646 (2004), I ordered the parties to
state their positions as to whether this matter should be reopened
for further evidence and/or supplemental briefing. After an ex-
tension of time to respond, the parties filed their responses on
February 6, 2018, declining to reopen the record. I provided the
parties an opportunity to file supplemental briefs, which they did.
On the entire record, including the amended stipulated facts
and exhibits,2 and after considering the briefs and supplemental
briefs filed by the General Counsel and Respondent,3 I make the
following
FINDINGS OF FACT AND ANALYSIS
I. JURISDICTION
Respondent, a State of North Carolina limited liability com-
pany with offices and places of business throughout the United
States, including Mill Creek, Washington (Mill Creek facility),
is engaged in the retail sale of home improvement goods, where
it annually derived gross revenues in excess of $500,000 and pur-
chased and received at its Mill Creek facility goods valued in
excess of $50,000 directly from points outside of the State of
Washington. 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.
Based on the above, I find that these allegations affect

1 On July 5, 2017, the Regional Director of Region 19 of the Board
issued an order severing complaint allegations.
2 Other abbreviations used int his decision are as follows: Other ab-
breviations used in this decision are as follows: “Ex.” for exhibit; “GC
Br.” for the General Counsel’s brief; “GC Supp. Br.” for the General
commerce and that the Board has jurisdiction of this case, pur-
suant to Section 10(a) of the Act.
II. THE CONFIDENTIAL INFORMATION RULE
At all relevant times, Respondent maintained nationwide its
Code of Business Conduct and Ethics (Original Code) with the
following “Confidential Information” rule:
This Code of Business Conduct and Ethics (“Code”) applies to
every Lowe’s employee (hereinafter referred to as “Employ-
ees”). [. . .] All Employees should read, review and understand
these standards because, as an Employee, you must conduct
yourself in accordance with this Code and help ensure that oth-
ers do as well. If objections, conflicts or possible conflicts, or
disagreements with this Code arise, or if you become aware of
violations or potential violations of this Code, it is important
that you resolve them promptly, following the guidance pro-
vided in this Code. Employees are encouraged to talk to super-
visors, managers or other appropriate personnel about observed
illegal or unethical behavior and, when in doubt, about the best
course of action in a particular situation.
[…]
5. Confidential Information:
Employees must maintain the confidentiality of information
entrusted to them by Lowe’s or its suppliers or customers, ex-
cept when disclosure is authorized by Lowe’s General Counsel
and Chief Compliance Officer or disclosure is required by law,
applicable governmental regulations or legal proceedings.
Whenever feasible, Employees should consult with the com-
pany’s General Counsel and Chief Compliance Officer before
disclosing confidential information if they believe they have a
legal obligation to do so.
Confidential information includes all non-public information
that might be of use to competitors of the company, or harmful
to Lowe’s, its suppliers or customers, if disclosed. It includes
all proprietary information relating to Lowe’s business such as
customer, budget, financial, credit, marketing, pricing, supply
cost, personnel, medical records and salary information.
(Exh. G, emphasis in original.)
Also, since at least May 31, 2013, Respondent has maintained
the following “Confidential Information” rule in its Code of
Business Conduct and Ethics policy (Revised Code):
Employees must maintain the confidentiality of information
entrusted to them by Lowe’s, its suppliers, its customers, or its
competitors, except when disclosure is authorized by the Chief
Compliance Officer or required by law. Employees must con-
sult with the Chief Compliance Officer before disclosing any
information that could be considered confidential.
Confidential information includes, but is not limited to:
 Material, non-public information; and
Counsel’s supplemental brief; “R. Br.” for Respondent’s brief; and “R.
Supp. Br.” for Respondent’s supplemental brief.
3 The Charging Party did not file a separate posthearing or supple-
mental brief.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
 Proprietary information relating to Lowe’s business
such as customer, budget, financial, credit, market-
ing, pricing, supply cost, personnel, medical records
or salary information, and future plans and strategy.
(Exh. 13.) The forward and introduction of Respondent’s Re-
vised Code indicates that the policy applies to all employees as
well as nonemployees. Employees must read, review and under-
stand the Code, and failure to abide by the terms may result in a
variety of disciplinary actions.
The Original and Revised Code, which both appear to be in
effect, apply to virtually anyone who performs business on be-
half of Respondent including employees. The Original and Re-
vised Codes contain rules including social media, employee re-
lations and confidential information.
Any violations of the Confidential Information rule in the
Original and Revised Code could result in a variety of discipli-
nary actions from a warning to termination (Exh. H, 13).
III. STIPULATED ISSUE AND CONTENTIONS OF THE PARTIES
In the Revised Stipulation, the parties agreed that the issue to
be resolved in this matter is whether Respondent’s maintenance
of both versions of Confidential Information provision in its
Original and Revised Code violates Section 8(a)(1) of the Act
because it interferes with employees’ exercise of their Section 7
rights to discuss salary information and subjects them to disci-
pline for any such discussion.4
The General Counsel’s position is that Respondent’s mainte-
nance of both versions of the Confidential Information rule in its
Original and Revised Code interferes with, restrains, and coerces
employees in the exercise of their rights under Section 7 of the
Act, in violation of Section 8(a)(1) of the Act. Specifically, both
versions of the rule prohibit discussion of salary information, and
any violations of such would be subject to discipline. Under
Boeing, the counsel for the General Counsel argues that prohibi-
tion on discussion of salary information has been deemed unlaw-
ful by the Board as a category 3 rule and thus, no balancing test
of Respondent’s business justification and employees’ Section 7
rights needs to occur (GC Supp. Br. at 3–4). In the alternative,
the General Counsel argues that Respondent’s purported busi-
ness justification does not outweigh the employees’ Section 7
rights to discuss their wages (GC Supp. Br. at 4). Moreover, as
this is a nationwide policy, the General Counsel requests a na-
tionwide remedy. The Charging Party concurs with the General
Counsel’s position.
Respondents’ position is that both versions of the Confidential
Information rule do not prohibit or discourage employees from
discussing terms and conditions of their employment including
salary information. Respondent asserts that the Original and Re-
vised Code applies to employees and non-employees, and is not
found in its personnel policies. Respondent argues that the Con-
fidential Information provision relates to situations in which a
person who is entrusted with non-public information relating to
Respondent’s business shares such information; Respondent

4 Counsel for the General Counsel, in her brief, alleges that the pro-
hibition on disclosure of “personnel information” also violates Sec.
8(a)(1) of the Act (GC Br. at 6, fn. 2). As the parties did not include
“personnel information” as a stipulated issue, I decline to address
argues that the Confidential Information provision does not pro-
hibit employees from discussing salary information with one an-
other. Moreover, under the balancing test set forth in Boeing,
Respondent claims that its business justifications for the Confi-
dential Information rule outweighs the employees’ section 7
rights (R. Supp. Br. at 3–8). Finally, Respondent argues that
since the categories set forth by the Board in Boeing “are not part
of the test itself,” Respondent would not address these categories
(R. Supp. Br. at 3, fn. 4, citing Boeing, supra, slip op. at 5).
IV. ANALYSIS
Section 8(a)(1) of the Act makes it an unfair labor practice for
an employer “to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in Section 7 [of the Act].”
Section 7 provides that “employees shall have the right to self-
organization, to form, join or assist labor organizations, to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, and shall
also have the right to refrain from any or all such activities.”
Specifically, Section 7 protects employees’ right to discuss, de-
bate, and communicate with each other regarding workplace
terms and conditions of employment.
Under Board law, a work rule is unlawful if “the rule explicitly
restricts activities protected by Section 7.” Lutheran Heritage,
supra at 646 (emphasis in original). Moreover, if a work rule
does not explicitly restrict protected activities, it nonetheless
may violate Section 8(a)(1) if “(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. But in Boeing Co., supra, the Board overruled the “reason-
ably construe” standard in prong 1 of Lutheran Heritage and re-
placed it with a new standard. The Board stated, “When evalu-
ating a facially neutral policy, rule or handbook provision that,
when reasonably interpreted, would potentially interfere with the
exercise of NLRA rights, the Board will evaluate two things: (i)
the nature and extent of the potential impact on NLRA rights,
and (ii) legitimate justifications associated with the rule.” Id.,
slip op. at 3 (emphasis in original). The Board continued, “the
Board will conduct this evaluation, consistent with the Board’s
‘duty to strike the proper balance between . . . asserted business
justifications and the invasion of employee rights in light of the
Act and its policy’, focusing on the perspective of employees,
which is consistent with Section 8(a)(1).” Id. (Emphasis in orig-
inal, footnotes omitted).
Furthermore, the Board, as a result of this balancing, created
three categories of employment policies, rules and handbook
provisions:
 Category 1 will include rules that the Board desig-
nates 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)
whether both versions of the Confidential Information rules are unlawful
for their inclusion of “personnel information” and limit my analysis only
to the inclusion of salary information in the rules.
LOWES HOME CENTERS, LLC 5
the potential adverse impact on protected rights is
outweighed by justifications associated with the
rule. Examples of Category 1 rules are the no-cam-
era requirement in this case, the “harmonious inter-
actions and relationships” rule that was at issue in
William Beaumont Hospital, and other rules requir-
ing employees to abide basic standards of civility.
 Category 2 will include rules that warrant individual
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
conduct is outweighed by legitimate justifications.
 Category 3 will include rules that the Board will des-
ignate as unlawful to maintain because they would
prohibit or limit NLRA-protected conduct, and the
adverse impact on NLRA rights is not outweighed
by justifications associated with the rule. An exam-
ple of a Category 3 rule would be a rule that prohibits
employees from discussing wages or benefits with
one another.
Id., slip op. at 3–4, 15 (citing William Beaumont Hospital, 363
NLRB No. 162 (2016)). These categories are not part of the bal-
ancing test but rather categorical assignment of a rule by the
Board after the decision is made. Id.
Respondent’s Confidential Information provision in both the
Original and Revised Code prohibits employees from unauthor-
ized disclosure of confidential information, including salary in-
formation, without specificity as to whom disclosure is prohib-
ited. The provision, in the Original Code, notes that confidential
information is defined as all nonpublic information that could be
used by Respondent’s competitors or that would be “harmful to
Lowe’s” if disclosed. In the Revised Code, confidential infor-
mation includes material, nonpublic information. Employees
may be issued a final warning or terminated as a consequence of
violating the Original Code, and face a myriad of disciplinary
actions as a consequence of violating the Revised Code.
Employee discussions regarding wages, the core of Section 7
rights, are “the grist on which concerted activity feeds.” Parexel
International, LLC, 356 NLRB 516, 518 (2011), citing
Aroostook County Regional Ophthalmology Center, 317 NLRB
218, 220 (1995), enfd. in part 81 F.3d 209 (D.C. Cir. 1996). As
such, the Board has consistently held that rules or provisions
which prohibit employees from discussing wages are unlawful.
See Waco, Inc., 273 NLRB 746, 748 (1984) (absent a legitimate
and substantial business justification, rule prohibiting employees
from discussing their wages with one another is unlawful); Jean-
nette Corporation, 217 NLRB 653, 656 (1975) (unqualified rule
prohibiting employees from discussing wages with other em-
ployees is unlawful regardless of whether the rule is deemed a
company policy or not); cf. Asheville School, Inc., 347 NLRB
877, 881 (2006) (employee discharged for divulging confidential
wage information she learned as a result of her job function not
protected activity); Super K-Mart, 330 NLRB 263 (1999) (em-
ployer rule barring disclosure of its confidential company

5 Respondent claims that the General Counsel failed to prove that the
Confidential Information rule impacted any employees’ Section 7 rights.
However, the complaint does not allege that the Confidential Information
business and documents lawful as the rule did not bar employees
from discussing wages).
Also, according to the Board’s holding in Boeing, a rule pro-
hibiting wage discussion, defined as a Category 3 rule, is unlaw-
ful as its potential interference with the exercise of protected
rights outweighs any possible justification. In this instance, both
versions of the Confidential Information provision may be read
to preclude employees from discussing their salary information
with one another, as well as nonemployees such as union repre-
sentatives and Board agents, which the Board has found to in-
fringe on employees’ Section 7 rights to discuss terms and con-
ditions of their employment with others. See, e.g., Triple Play
Sports Bar & Grille, 361 NLRB No. 31, slip op. at 7 (2014);
Bigg’s Foods, 347 NLRB 425, 425 fn. 4 (2006); Flamingo Hil-
ton-Laughlin, 330 NLRB 287, 292 (1999) (finding unlawful
handbook rule which prohibited disclosure of proprietary infor-
mation to be sufficiently vague as to cover the discussion of
wages). Respondent argues that the term “entrusted” indicates
that the information covered by the rule would not cover wages,
and that the focus of the Confidential Information rules are to
avoid unfair competition and sharing of proprietary information.
However, the Confidential Information rule in the Original Code
is not limited to only sharing information with competitors, but
includes overbroad, ambiguous language of sharing confidential
information “harmful to Lowe’s.” Any ambiguities in a rule are
construed against the drafter, and here, “focusing on the perspec-
tive of employees,” the Confidential Information rule could not
be read as Respondent offers. Boeing, supra, slip op. at 3; T-
Mobile USA, Inc., 363 NLRB No. 171, slip op. at 13 (2016); Lily
Transportation Corp., 362 NLRB 406 (2015); Flex Frac Logis-
tics, LLC, 358 NLRB 1131, 1132 (2012), remanded on other
grounds, 360 NLRB 1004 (2014), enfd. 746 F.3d 205 (5th Cir.
2014). To the contrary, the Confidential Information rule pre-
cludes discussion of salary information. In addition, employees
face discipline if they violate the Confidential Information rule
in the Original and Revised Code. Therefore, the Confidential
Information rule is unlawful.5
Respondent claims that since the Boeing Board’s categories
are not part of the balancing test, the categories have no applica-
bility in this instance. I disagree. I read the Board’s Boeing
holding to designate any rule prohibiting employees from dis-
cussing salary information as per se unlawful thus bypassing the
need to conduct a balancing test. As the Board explained the
“three categories will represent a classification of results from
the Board’s application of the new test [. . .] The Board will de-
termine , in future cases, what types of additional rules fall into
which category. Although the legality of some rules will turn on
the particular facts in a given case, we believe adherence to the
analysis we announce here will ultimately provide far greater
clarity and certainty to employees, employers and unions regard-
ing whether and to what extent different types of rules may law-
fully be maintained.” Boeing, supra, slip op. at 15. In Category
3, the Boeing Board exemplified rules prohibiting discussion of
wages with one another as a type of rule which will be generally
rule of the Original and Revised Codes was promulgated in response to
protected activity or applied to restrict protected activity under prongs
two and three of Lutheran Heritage.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
designated as unlawful. Id., slip op. at 4. By specifically pro-
hibiting employees from disclosing of salary information, Re-
spondent’s confidentiality of information provision is unlawful
and violates Section 8(a)(1) of the Act.
Even when conducting the Boeing balancing test, the adverse
impact on employees’ Section 7 rights outweighs Respondent’s
asserted business justifications. Most importantly for this anal-
ysis, Respondent failed to present any legitimate business justi-
fications for precluding disclosure of salary information in its
Confidential Information rule. Despite permitting the parties to
re-open the record, Respondent declined and failed to present
more than bare assertions for its alleged business justifications.
Respondent claims that its Confidential Information rule is law-
ful “in preventing employees from engaging in insider trading,”
“to avoid unethical business conduct and unfair competition by
members of the Lowe’s community who have been entrusted
with competitively sensitive information” and “to comply with
antitrust laws” (R. Br. at 16; R. Supp. Br. at 7). Respondent cites
to numerous cases where the Board has found a rule lawful due
to an employer’s well-established business justifications.6 In
each of these cited cases though, the employer presented evi-
dence via witness testimony and documentary evidence to sup-
port its claimed business justification when the Board deter-
mined that the employer’s need for the specific rule would not
restrict employees’ Section 7 activity.7 For example, in Interna-
tional Business Machines Corp., 265 NLRB 638 (1982), the
Board determined that an employer’s policy to treat as confiden-
tial wage data it compiled for internal use as lawful where the
policy did not bar employees from compiling wage information
on their own. Moreover, even in IBM, the employer presented
evidence as to how its “closed” wage system was used to recruit
and retain employees and prevent competitors from stealing em-
ployees. Id. Even in Boeing, the record is replete with evidence
as to why the employer maintained a no-camera rule. Here, Re-
spondent failed to establish any legitimate business justification
for its Confidential Information rule to outweigh employees’
Section 7 rights. Thus, even applying the Boeing balancing test,
Respondent’s Confidential Information rule, both versions,
which prohibit discussion of salary information is unlawful un-
der Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by maintain-
ing the following rules in the Original and Revised Codes:
i. In the Code of Business Conduct and Ethics: Confidential
Information:
Employees must maintain the confidentiality of information
entrusted to them by Lowe’s or its suppliers or customers, ex-
cept when disclosure is authorized by Lowe’s General Counsel

6 Respondent also cites to several administrative law judge decisions
which are non-precedential.
7 I.e, Flagstaff Medical Center, Inc., 357 NLRB 659, 663 (2011) (em-
ployer rule against photographing hospital property does not expressly
restrict Sec. 7 activity, employees would not reasonably interpret the rule
and Chief Compliance Officer or disclosure is required by law,
applicable governmental regulations or legal proceedings.
Whenever feasible, Employees should consult with the com-
pany’s General Counsel and Chief Compliance Officer before
disclosing confidential information if they believe they have a
legal obligation to do so.
Confidential information includes all non-public information
that might be of use to competitors of the company, or harmful
to Lowe’s, its suppliers or customers, if disclosed. It includes
all proprietary information relating to Lowe’s business such as
customer, budget, financial, credit, marketing, pricing, supply
cost, personnel, medical records and salary information.
ii. In the Code of Business Conduct and Ethics, dated May 31,
2013:
Employees must maintain the confidentiality of information
entrusted to them by Lowe’s, its suppliers, its customers, or its
competitors, except when disclosure is authorized by the Chief
Compliance Officer or required by law. Employees must con-
sult with the Chief Compliance Officer before disclosing any
information that could be considered confidential.
Confidential information includes, but is not limited to:
 Material, non-public information; and
 Proprietary information relating to Lowe’s business
such as customer, budget, financial, credit, market-
ing, pricing, supply cost, personnel, medical records
or salary information, and future plans and strategy.
3. The above unfair labor practice affects 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. Moreover, as the nationwide Confidential
Information rule in the Original and Revised Codes have been
determined to be unlawful and violate Section 8(a)(1), a nation-
wide posting by Respondent is appropriate as the record shows
that the unlawful rules and policies are maintained in effect at all
of Respondent’s facilities within the United States. See Mastec
Advanced Technologies, 357 NLRB 103 (2011), enfd. sub nom.
DirectTV v. NLRB, 837 F.3d 25 (2016); Guardsmark, LLC, 344
NLRB 809, 812 (2005).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
Respondent, Lowe’s Home Centers, LLC, North Carolina and
Mill Creek, Washington, at all of its facilities nationwide, its of-
ficers, agents, successors, and assigns, shall
as restricting Sec. 7 activity, and privacy interests of hospital patients are
“weighty”).
8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der 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 purposes.
LOWES HOME CENTERS, LLC 7
1. Cease and desist from
(a) Maintaining the following unlawful rules:
In the Code of Business Conduct and Ethics: Confidential In-
formation:
Employees must maintain the confidentiality of information
entrusted to them by Lowe’s or its suppliers or customers, ex-
cept when disclosure is authorized by Lowe’s General Counsel
and Chief Compliance Officer or disclosure is required by law,
applicable governmental regulations or legal proceedings.
Whenever feasible, Employees should consult with the com-
pany’s General Counsel and Chief Compliance Officer before
disclosing confidential information if they believe they have a
legal obligation to do so.
Confidential information includes all non-public information
that might be of use to competitors of the company, or harmful
to Lowe’s, its suppliers or customers, if disclosed. It includes
all proprietary information relating to Lowe’s business such as
customer, budget, financial, credit, marketing, pricing, supply
cost, personnel, medical records and salary information.
ii. In the Code of Business Conduct and Ethics, dated May 31,
2013:
Employees must maintain the confidentiality of information
entrusted to them by Lowe’s, its suppliers, its customers, or its
competitors, except when disclosure is authorized by the Chief
Compliance Officer or required by law. Employees must con-
sult with the Chief Compliance Officer before disclosing any
information that could be considered confidential.
Confidential information includes, but is not limited to:
 Material, non-public information; and
 Proprietary information relating to Lowe’s business
such as customer, budget, financial, credit, market-
ing, pricing, supply cost, personnel, medical records
or salary information, and future plans and strategy.
(b) In any like or related manner interfering with, restraining,
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 effectu-
ate the policies of the Act.
(a) Rescind the unlawful rules as set forth above.
(b) Furnish employees with inserts for the Code of Business
Conduct and Ethics original version and revised version dated
May 31, 2013 that (1) advise that the unlawful rules have been
rescinded, or (2) provide lawfully worded rules.
(c) Within 14 days after service by the Region, post at its fa-
cilities nationwide, copies of the attached notice marked “Ap-
pendix.”9 Copies of the notice, on forms provided by the Re-
gional Director for Region 19, after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are

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 National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
customarily posted. In addition to physical posting of paper no-
tices, the notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or other elec-
tronic 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 altered, 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 em-
ployed by the Respondent at any time since August 1, 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, Washington, D.C., April 17, 2018.
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 be-
half
Altogether with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain the following rules in the original and
revised, dated May 13, 2003, version of the Code of Business
Conduct and Ethics which could be understood to prohibit you
from engaging in activities protected under Section 7 of the
Act:
In the Code of Business Conduct and Ethics: Confidential In-
formation:
Employees must maintain the confidentiality of information
entrusted to them by Lowe’s or its suppliers or customers, ex-
cept when disclosure is authorized by Lowe’s General Counsel
and Chief Compliance Officer or disclosure is required by law,
applicable governmental regulations or legal proceedings.
Whenever feasible, Employees should consult with the com-
pany’s General Counsel and Chief Compliance Officer before
disclosing confidential information if they believe they have a
legal obligation to do so.
Confidential information includes all non-public information
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that might be of use to competitors of the company, or harmful
to Lowe’s, its suppliers or customers, if disclosed. It includes
all proprietary information relating to Lowe’s business such as
customer, budget, financial, credit, marketing, pricing, supply
cost, personnel, medical records and salary information.
In the Code of Business Conduct and Ethics, dated May 31,
2013:
Employees must maintain the confidentiality of information
entrusted to them by Lowe’s, its suppliers, its customers, or its
competitors, except when disclosure is authorized by the Chief
Compliance Officer or required by law. Employees must con-
sult with the Chief Compliance Officer before disclosing any
information that could be considered confidential.
Confidential information includes, but is not limited to:
 Material, non-public information; and
 Proprietary information relating to Lowe’s business
such as customer, budget, financial, credit, market-
ing, pricing, supply cost, personnel, medical records
or salary information, and future plans and strategy.
WE WILL NOT in any other manner interfere with, restrain, or
coerce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL rescind/revise the unlawful rules listed above.
WE WILL furnish you with inserts for the original and revised,
dated May 13, 2003, version of the Code of Business Conduct
and Ethics that (1) advise that the unlawful rules have been re-
scinded, or (2) provide lawfully worded rules.
LOWES HOME CENTERS, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/19-CA-191665 or by using the QR code be-
low. 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.