MACY'S, INC.

National Labor Relations Board - Board Decisions

Aug 14, 2017

365 NLRB No. 116 (N.L.R.B. 2017)

365 NLRB No. 116
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.
Macy’s, Inc. and United Food and Commercial
Workers Union, Local 1445. Case 01–CA–
123640
August 14, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
On May 12, 2015, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Respondent
filed exceptions1 and a supporting brief, the General
Counsel filed an answering brief, and the Charging Party
filed an opposition to the exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order. 2
The Respondent has excepted only to the judge’s find-
ing and conclusion that the Respondent’s rules prohibit-
ing the use of customer information violate Section
8(a)(1). We find merit to this exception. While employ-
ees generally have a Section 7 right to appeal to their
employer’s customers for support in a labor dispute, the
disputed rules do not restrict such appeals. Instead, they
prohibit the disclosure of information about customers
obtained from the Respondent’s confidential records.
For the reasons stated below, this prohibition does not
violate the Act.
Facts
At issue here are the restrictions on use of customer in-
formation in the following rules. The relevant portions at
issue are italicized.
CONFIDENTIAL INFORMATION
What To Know

1 The Respondent does not except to the judge’s findings that the
Respondent violated Sec. 8(a)(1) by maintaining handbook rules pro-
hibiting the use of information about employees, restricting use of the
Respondent’s logo, or requiring employees to notify the human re-
sources department prior to participating in a government investigation.
2 We shall modify the judge’s recommended Order to conform to
our findings and to Guardsmark, LLC, 344 NLRB 809, 812 (2005),
enfd. in relevant part 475 F.3d 369 (D.C. Cir. 2007), and to provide for
the posting of the notice in accordance with J. Picini Flooring, 356
NLRB 11 (2010). We shall substitute a new notice to conform to the
Order as modified.
Confidential information about our Company, its busi-
ness, associates, customers and business partners
should be protected. It can be used only to pursue the
Company’s business interests or to comply with the
Company's legal or other obligations.
What is confidential information? It could be business
or marketing plans, pricing strategies, financial perfor-
mance before public disclosure, pending negotiations
with business partners, information about employees,
documents that show social security numbers or credit
card numbers—in short, any information, which if
known outside the Company could harm the Company
or its business partners, customers or employees or al-
low someone to benefit from having this information
before it is publicly known.
Just as our Company requires that its own confidential
information be protected, our Company also requires
that the confidential and proprietary information of oth-
ers be respected.
What To Do
In performing our duties, we as associates may have
access to confidential information relating to our Com-
pany, its business, customers, business partners or our
co-workers.
We are all trusted to maintain the confidentiality of
such information and to ensure that the confidential in-
formation, whether verbal, written or electronic, is not
disclosed except as specifically authorized. Additional-
ly, it must be used only for the legitimate business of the
Company.
Here are some simple rules to follow.
Confidential information should:
 Be stored in locked file cabinets or drawers and
not be left where others can see it,
 Be clearly marked as confidential whenever
possible,
 Be shared only with those who need to see it for
Company business purposes,
 Not be sent to unattended fax machines or print-
ers,
 Not be discussed where others may hear,
 Be shredded when no longer needed.
Always respect the confidentiality of the information of
third parties. We must not use or disclose any of it ex-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
cept as authorized under a written agreement approved
by our Law Department.
USE AND PROTECTION OF PERSONAL DATA
What To Know
The Company has certain personal data of its present
and former associates, customers and vendors. It re-
spects the privacy of this personal data and is commit-
ted to handling this data responsibly and using it only
as authorized for legitimate business purposes.
What is considered personal data? It is information
such as names, home and office contact information,
social security numbers, driver's license numbers, ac-
count numbers and other similar data.
What To Do
We have a strict obligation to use such personal data in
a manner that:
 respects the privacy of our co-workers and
our Company’s customers and vendors,
 complies with all applicable laws and regula-
tions, and Company policies,
 upholds any confidentiality or privacy obliga-
tions of the Company in its contracts.
In addition, we must follow all policies and measures
adopted by the Company for the protection of such data
from unauthorized use, disclosure or access. If any of
us becomes aware of any instance of data being ac-
cessed or being used in an unauthorized manner, we
must report it immediately to our Divisional Security
Administrator or the Law Department.
CONFIDENTIALITY AND ACCEPTABLE USE OF
COMPANY SYSTEMS
The following standards and procedures apply to your
use of, or access to, all Confidential Information.
1. All Non-Public Information is Sensitive
Any information that is not generally available to the
public that relates to the Company or the Company’
customers, employees, vendors, contractors, service
providers, Systems, etc., that you receive or to which
you are given access during your employment or while
you are performing services for the Company is classi-
fied as “Confidential” or “Internal Use Only” under
the Macy’s Information Security Policy. As is set forth
in the Macy’s Information Security Policy, internal ac-
cess to Confidential Information should only be grant-
ed on a “need to know” basis, and such information
should not be shared with third parties without prior
approval from your Company supervisor and consulta-
tion with the Law Department.
. . .
3. Use and Protection of Personal Data
Company maintains certain information regarding its
present and former associates, customers and vendors.
Company respects the privacy of this data where it in-
cludes personally-identifiable information (“Personal
Data”). Personal Data includes names, home and of-
fice contact information, social security numbers, driv-
er’s license numbers, account numbers and other simi-
lar data. Company is committed to handling Personal
Data responsibly and using it only as appropriate for
legitimate business purposes. This commitment re-
quires that all Company employees, contractors, and
third parties who are granted access to Personal Data
by Company follow all policies adopted by the Com-
pany for the protection of such data against unauthor-
ized use, disclosure or access. Such policies, including
those set forth in the Macy’s Information Security Poli-
cy, may vary depending on the sensitivity of the Per-
sonal Data at issue.
Personal Data may not be shared with any third party
without the written approval of your senior Sales Pro-
motion executive or, for support organizations, your
Chief Executive Officer.
Judge’s Decision
As pertinent here, the judge found that the rules violate
Section 8(a)(1) insofar as they restrict the use of infor-
mation regarding customers. He reasoned that employ-
ees have a Section 7 right to communicate with custom-
ers regarding matters affecting their employment, and he
found that the rules were unlawful because they restrict
such communications.
Analysis
“In determining whether a work rule violates Section
8(a)(1), the appropriate inquiry is whether the rule would
reasonably tend to chill employees in the exercise of
their Section 7 rights.” Lafayette Park Hotel, 326 NLRB
824, 825 (1998), enfd. mem. 203 F.3d 52 (D.C. Cir.
1999). If the rule explicitly restricts Section 7 rights, it is
unlawful. Lutheran Heritage Village-Livonia, 343
NLRB 646, 646 (2004). If it does not, “the violation is
MACY’S, INC. 3
dependent upon a showing of one of the following: (1)
employees would reasonably construe the language to
prohibit Section 7 activity; (2) the rule was promulgated
in response to union activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights.” Id. at
647.3 There is no allegation in this case that the rules at
issue explicitly restrict Section 7 rights, have been prom-
ulgated in response to union activity, or have been ap-
plied to restrict the exercise of Section 7 rights, so the
question is whether employees would reasonably under-
stand the rules to restrict Section 7 activity.
As the judge observed, employees indisputably have a
Section 7 right to concertedly appeal to their employer’s
customers for support in a labor dispute. Trinity Protec-
tion Services, 357 NLRB 1382, 1383 (2011); Kinder-
Care Learning Centers, 299 NLRB 1171, 1171–1172
(1990).4 Contrary to the judge, however, the disputed

3 Chairman Miscimarra agrees that the rules are lawful under Lu-
theran Heritage Village for the reasons articulated in the text. Howev-
er, for the reasons explained in his separate opinion in William Beau-
mont Hospital, 363 NLRB No. 162, slip op. at 7–24 (2016) (Member
Miscimarra, concurring in part and dissenting in part), he believes that
the Lutheran Heritage “reasonably construe” test should be overruled
by the Board or repudiated by the courts. In Chairman Miscimarra’s
view, the Board should evaluate an employer’s workplace rules, poli-
cies and handbook provisions by striking a proper balance that takes
into account (i) the legitimate justifications associated with the disputed
rules and (ii) any potential adverse impact of the rules on NLRA-
protected activity. See NLRB v. Great Dane Trailers, Inc., 388 U.S. 26,
33–34 (1967) (referring to the Board’'s “duty to strike the proper bal-
ance between . . . asserted business justifications and the invasion of
employee rights in light of the Act and its policy”). In striking this
balance, Chairman Miscimarra believes the Board must take into ac-
count relevant considerations, which may include, depending on the
case, reasonable distinctions between types of rules and justifications,
evidence regarding the particular industry or work setting, specific
events that may bear on the disputed rule, and the possibility that the
rule may be lawfully maintained even though application of the rule
against NLRA-protected conduct may be unlawful. See William
Beaumont Hospital, supra, slip op. at 15, 18–20 (Member Miscimarra,
concurring in part and dissenting in part).
Applying this balancing test here, Chairman Miscimarra agrees that
the rules are lawful. The impact on Sec. 7 rights is comparatively
slight, since the rules only limit employees’ use of information main-
tained in the Respondent’s confidential records, and the rules erect no
barrier to communications with customers using information from any
other source. Moreover, the Respondent has compelling justifications
for protecting the customer information at issue here: names, home and
office contact information, social security numbers, driver’s license
numbers, account numbers, and other similar data. See Schwan’s
Home Service, 364 NLRB No. 20, slip op. at 16 (2016) (then-Member
Miscimarra, concurring in part and dissenting in part).
Member McFerran notes Chairman Miscimarra’s view that the
standard set forth in Lutheran Heritage Village should be changed, but
she disagrees with that view for the reasons stated in William Beaumont
Hospital, supra, slip op. at 2–6 (2016).
4 Chairman Miscimarra notes that such appeals are subject to an
employee’s duty of loyalty to his or her employer as defined in NLRB v.
Electrical Workers Local 1229 (Jefferson Standard Broadcasting Co.),
rules do not interfere with this right insofar as they re-
strict the use or disclosure of social security numbers and
credit card numbers, or to the extent that they restrict the
use of customer contact information obtained from the
Respondent’s own confidential records. Accordingly, for
the reasons that follow, we find that employees would
not reasonably construe the rules at issue here to prohibit
Section 7 activity.
The “Confidential Information” rule specifically de-
fines the confidential information to which it applies.5
The only information covered by that rule that arguably
relates to customers is “social security numbers or credit

346 U.S. 464 (1953), and to the duty to refrain from making malicious-
ly false statements as set forth in Linn v. Plant Guards Local 114, 383
U.S. 53 (1966).
5 “What is confidential information? It could be business or market-
ing plans, pricing strategies, financial performance before public dis-
closure, pending negotiations with business partners, information about
employees, documents that show social security numbers or credit card
numbers—in short, any information, which if known outside the Com-
pany 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.”
Our dissenting colleague does not contend that the Respondent’s
Confidential Information rule violates the Act insofar as it prohibits the
disclosure of customers’ social security numbers or credit card num-
bers. Focusing solely on the rule’s final clause—i.e., “any information,
which if known outside the Company could harm the Company or its
business partners, customers or employees or allow someone to benefit
from having this information before it is publicly known”—the dissent
instead argues that the rule sweeps more broadly “to encompass general
information about customers, including information by employees in
furtherance of their Section 7 rights.” It is well settled, however, that in
“determining whether a challenged rule is unlawful, the Board must . . .
give the rule a reasonable reading. It must refrain from reading particu-
lar phrases in isolation, and it must not presume improper interference
with employee rights.” Lutheran Heritage Village, 343 NLRB at 646.
The dissent says that we have disregarded these principles, but it is our
colleague who does so. Employees would not reasonably read the
definition quoted above to encompass “customer information” other
than social security numbers or credit card numbers when the provision
is read as a whole, including the list of specific covered items. Even if
the rule were susceptible to the broader interpretation our colleague
places on it, the only example he provides of additional information
that would be covered under his proposed reading of the rule is custom-
er contact information. Restrictions on the disclosure of customer
contact information obtained from the Respondent’s own confidential
records are lawful for the reasons stated below.
Chairman Miscimarra observes that the dissent mischaracterizes our
interpretation of the Confidential Information rule when he says that we
“deconstruct” it. Despite our disagreement regarding the reasonable
construction of the rule, we and our colleague both proceed from the
assumption that the rule may be interpreted and that different interpreta-
tions may be more or less reasonable. Chairman Miscimarra notes that
deconstruction proceeds from a view of language that rejects these
assumptions. See https://en.wikipedia.org/wiki/Deconstruction (last
visited June 19, 2017) (summarizing, with questionable success, the
philosophy of deconstruction as expounded by Jacques Derrida, its
subsequent development by the critical theorists of the Yale School and
Jean-Luc Nancy, and the critiques leveled against Derrida’s views by
several philosophers, including John Searle and Jürgen Habermas).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
card numbers.” The General Counsel concedes that cus-
tomers’ social security numbers and credit card numbers
are “sensitive” information, and he does not argue that
employees have a right to use that information for Sec-
tion 7 purposes.6 Neither is there any basis for inferring
such a right, since social security numbers and credit
card numbers would be of no valid use in appealing to
customers regarding employees’ work-related concerns
or engaging in any other activity protected by Section 7.
To the extent that the Respondent’s rules prohibit the
unauthorized use or disclosure of customers’ social secu-
rity numbers or credit card numbers, they are lawful.
The “Use and Protection of Personal Data” and “Con-
fidentiality and Acceptable Use of Company Systems”
rules are similarly lawful to the extent they prohibit the
use or disclosure of social security numbers or account
numbers.7 We recognize that those rules also limit the
use or disclosure of customer names and contact infor-
mation, which employees could use for the purpose of
appealing to customers regarding a labor dispute or their
terms and conditions of employment. But both rules, by
their terms, only apply to customer names and contact
information obtained from the Respondent’s own confi-
dential records.8 The Act does not protect employees
who divulge information that their employer lawfully
may conceal. See, e.g., International Business Machines
Corp., 265 NLRB 638 (1982) (employee lawfully dis-
charged for disclosing wage data employer had compiled
and classified as confidential). Thus, the Board has re-
peatedly held that employees may be lawfully disciplined
or discharged for using for organizational purposes in-

6 To the contrary, the General Counsel contends that the disputed
rules are “overbroad, as they are not narrowly tailored to protect sensi-
tive customer information such as social security numbers and account
numbers.” GC Answering Br. at 16–17.
7 In this regard, we find that social security numbers and credit card
numbers are the only types of customer information covered by the first
paragraph of the “Confidentiality and Acceptable Use of Company
Systems” rule. By its terms, that portion of the rule applies only to
“Confidential Information,” and we find that employees would reason-
ably construe that term to have the same meaning as in the Confidential
Information rule discussed above. As we have explained, social securi-
ty numbers and credit card numbers are the only types of customer
information arguably covered by the “Confidential Information” rule.
8 The Use and Protection of Personal Data rule states: “The Com-
pany has certain personal data of its present and former . . . customers
. . . . [W]e must follow all policies and measures adopted by the Com-
pany for the protection of such data from unauthorized use . . . .” (em-
phasis added). The “Confidentiality and Acceptable Use of Company
Systems” rule similarly states: “Company maintains certain infor-
mation regarding its present and former . . . customers . . . . Company
respects the privacy of this data where it includes personally-
identifiable information (“Personal Data”) . . . . Personal Data may
not be shared with any third party without the written approval of your
senior Sales Promotion executive or, for support organizations, your
Chief Executive Officer” (emphasis added).
formation improperly obtained from their employer’s
private or confidential records. See Ridgeley Mfg. Co.,
207 NLRB 193, 196–197 (1973), enfd. 510 F.2d 185
(D.C. Cir. 1975); see also Flex Frac Logistics, LLC, 360
NLRB 1004, 1005 (2014) (employee lawfully discharged
for revealing confidential information contained in em-
ployer’s files despite the fact that the information “argu-
ably implicated concerns underlying the Section 7 rights
of others”); International Business Machines Corp., su-
pra (employee had Sec. 7 right to discuss wages and at-
tempt to learn what others were paid, but not to dissemi-
nate employer’s own confidential compilation of wage
data).9 Consistent with these cases, because the “Use and
Protection of Personal Data” and “Confidentiality and
Acceptable Use of Company Systems” rules only restrict
the use or disclosure of confidential customer contact
information that the Respondent “has” or “maintains,”
they are lawful.10

9 See also Food Services of America, Inc., 360 NLRB 1012, 1012 fn.
4 (2014) (employee lawfully discharged for transferring hundreds of
business emails, many of which contained confidential business infor-
mation, to personal email accounts), vacated pursuant to settlement by
365 NLRB No. 85 (2017); Cook County College Teachers Union Local
1600, 331 NLRB 118, 119–120 (2000) (employee lawfully disciplined
for providing list of names, home addresses, and telephone numbers of
respondent union’s officials, maintained in respondent union’s confi-
dential internal directory, to charging party union); Roadway Express,
271 NLRB 1238, 1239–1240 (1984) (employee lawfully discharged for
taking bills of lading from employer’s files, copying them, and provid-
ing copies to the union); Bullock’s, 251 NLRB 425, 426 (1980) (em-
ployee lawfully discharged for wrongfully obtaining and copying con-
fidential performance reviews in connection with challenge to employ-
er’s evaluation policy).
The “Use and Protection of Personal Data” and “Confidentiality and
Acceptable Use of Company Systems” rules also restrict the use of
driver’s license numbers and account numbers obtained from the Re-
spondent’s records. Those restrictions are lawful because the infor-
mation is of no valid use for the purpose of Sec. 7 activity and because,
in any event, the restriction only applies to the disclosure of infor-
mation obtained from the Respondent’s own confidential records.
10 Schwan’s Home Service, 364 NLRB No. 20, slip op. at 3 fn. 8
(2016), where the Board found unlawful a “near-complete prohibition
of disclosure or use of ‘information concerning customers,’” is distin-
guishable because in that case the prohibition was not limited to infor-
mation obtained from the employer’s confidential records. The rules at
issue here explicitly contain such a limitation.
Chairman Miscimarra relevantly dissented in Schwan’s, and he ad-
heres to the views he expressed therein. See Schwan’s Home Service,
supra, slip op. at 16 (then-Member Miscimarra, concurring in part and
dissenting in part). However, he agrees that Schwan’s is distinguisha-
ble on the basis stated above.
Our dissenting colleague contends that the Respondent could not
lawfully restrict the use or disclosure of confidential customer contact
information from its records because employees “likely” had access to
them as part of their “normal employment duties.” This argument fails
for two reasons. First, it is not the case that the Act protects any disclo-
sure of confidential information from an employer’s records, regardless
of the circumstances, whenever the employee has access to the infor-
mation as part of his or her duties. See, e.g., Food Services of America,
MACY’S, INC. 5
ORDER
The Respondent, Macy’s, Inc., Saugus, Massachusetts,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a rule that restricts its employees’ use
of information regarding fellow employees.
(b) Maintaining a rule that restricts the use of the Re-
spondent’s logo.
(c) Maintaining a rule that requires employees to noti-
fy the Respondent’s human resources department prior to
participating in a government investigation.
(d) 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 actions necessary to
effectuate the policies of the Act.
(a) Rescind or revise the rules in its employee hand-
book that restrict the use of information regarding fellow
employees.
(b) Rescind or revise the rule in its employee hand-
book that restricts the use of the Respondent’s logo.
(c) Rescind or revise the rule in its employee handbook
that requires employees to notify the Respondent’s hu-
man resources department prior to participating in a gov-
ernment investigation.
(d) Furnish all current employees with inserts for the
current employee handbook that (1) advise that the un-
lawful provisions have been rescinded or (2) provide
lawfully worded provisions on adhesive backing that will
cover the unlawful provisions; or publish and distribute
to employees revised employee handbooks that (1) do
not contain the unlawful provisions or (2) provide law-
fully worded provisions.
(e) Within 14 days after service by the Region, post at
all its facilities nationwide copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms

supra (finding the Act did not protect employee who copied hundreds
of business emails from his own work account that included “the names
of vendors and customers, . . . as well as other information. By what-
ever name, whether proprietary or confidential, this is information that
any company would not want out of its possession.”); Cook County
College Teachers Union Local 1600, supra (finding the Act did not
protect employee’s disclosure of respondent union’s directory to charg-
ing party where employee had access to directory and used it as part of
her work). Second, there is in any event no evidence in this case that
the Respondent’s customer contact information was available to “all
employees,” as the dissent contends, much less that it was used by them
in the course of their normal employment duties. To the contrary, the
parties agreed to submit this case to the judge on the basis of a stipulat-
ed record, and the parties’ stipulation does not address this issue in any
way. Our colleague’s unsupported speculation as to the Respondent’s
“likely” practices cannot substitute for evidence not in the record.
11 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-
provided by the Regional Director for Region 1, 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,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, or other
electronic means, if the Respondent customarily com-
municates with its employees by such means. Reasona-
ble 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 busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since September 5, 2013.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 1 a sworn certifi-
cation 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. August 14, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER PEARCE, dissenting.
The General Counsel alleged, and the judge found, that
the Respondent’s rules restricting employees’ use and
disclosure of certain customer information violated Sec-
tion 8(a)(1) of the Act. Contrary to the majority, who
interpret the rules more narrowly than as written, I agree
with the judge that employees would reasonably under-
stand the rules to broadly prohibit the disclosure of gen-
eral information about customers—information that

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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
could be used by employees in furtherance of their pro-
tected, concerted activities.1
It is well settled that a rule which restricts or prohibits
employees’ disclosure of a broad range of customer in-
formation violates Section 8(a)(1). See Schwan’s Home
Service, 364 NLRB No. 20, slip op. at 3 fn. 8 (2016)
(finding “the rule's near-complete prohibition of disclo-
sure or use of ‘information concerning customers’” to be
unlawful); Boch Honda, 362 NLRB No. 83, slip op. at 1
fn. 4 (2015), enfd. 826 F.3d 558 (1st Cir. 2016) (finding
that employer unlawfully treated “information about pro-
spective customers and suppliers” as confidential). The
rules at issue here broadly encompass such disclosures.
The Respondent’s “Confidential Information” rule re-
quires employees to keep confidential “information about
our Company, its business, associates, customers . . . ”
and further defines confidential information as “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.” The Respond-
ent’s rules, “Use and Protection of Personal Data” and
“Confidentiality and Acceptable Use of Company Sys-
tems” broadly restrict disclosure of “certain personal data
of its present and former associates, customers,” includ-
ing “names, home and office contact information, social
security numbers, driver’s license numbers, account
numbers and other similar data.”
Because many of the Respondent’s employees, like
those in Boch Honda and Schwan’s, work in retail or
customer service, they would reasonably interpret these
broad rules as prohibiting or restricting their disclosure
and use of customer information, for all purposes, includ-
ing those that may implicate their terms and conditions
of employment. For example, employee interaction with
customers could give rise to customer complaints about
employee performance. See Schwan’s, supra, slip op. at
3 fn. 8 (observing that “‘information concerning custom-
ers’ is inextricably intertwined in many aspects of [the
employees’] work, including their interaction with cus-
tomers, potential customer complaints about their per-
formance . . . their commission-based compensation, and
their ability to meet the Respondent’s scheduling tar-
gets.”). This language would also reasonably be under-
stood by employees to prevent them from contacting
customers to appeal for support in connection with their
concerted, protected activities aimed at improving their
terms and conditions of employment. Id.

1 I agree with my colleagues that the applicable inquiry here is
whether a reasonable employee would read the Respondent’s rules to
restrict their Sec. 7 activity. Lutheran Heritage Village-Livonia, 343
NLRB 646, 647 (2004).
My colleagues assert that Schwan’s and Boch Honda
are distinguishable because the “Confidential Infor-
mation” rule can only be reasonably read to prohibit the
disclosure of confidential information such as social se-
curity and credit card numbers, and that the “Use and
Protection of Personal Data” and “Confidentiality and
Acceptable Use of Company Systems” rules apply solely
to social security and credit card numbers as well as cus-
tomer contact information drawn from the Respondent’s
confidential records. However, my colleagues’ focus on
a few isolated words and phrases runs counter to Board
precedent requiring that the language of the rule not be
read in isolation2 and fails to acknowledge how an aver-
age employee would interpret the rules.3 By focusing on
the phrase “documents that show social security numbers
or credit card numbers,” my colleagues ignore the ac-
companying broad language defining confidential infor-
mation as “any information, which if known outside the
Company could harm the Company or its business part-
ners, customers or employees or allow someone to bene-
fit from having this information before it is publicly
known.” This latter expansive language would reasona-
bly be read by employees to encompass general infor-
mation about customers, including information by em-
ployees in furtherance of their Section 7 rights. For ex-
ample, the disclosure of contact information or addresses
could certainly “benefit” an outside entity, such as a un-
ion seeking to solicit support for employee organizing
efforts from the Respondent’s customers. Alternatively,
information about a dispute between an employee and
customer could similarly “harm” either party, but would
be relevant in the grievance or disciplinary process.
With regard to the “Use and Protection of Personal Da-
ta” and “Confidentiality and Acceptable Use of Compa-
ny Systems” rules, my colleagues assert that the rules
restricting the use of customer names and contact infor-
mation are limited by their terms to information obtained
from the Respondent’s confidential records. That an
employer maintains certain information in its records,
however, is not the same as an employer creating a con-
fidential record with that information. Indeed, under my
colleagues’ interpretation, any customer information ob-
tained by an employer and maintained in its files can
become a “confidential record” if an employer designates

2 Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d
52 (D.C. Cir. 1999).
3 While my colleagues’ sophisticated attempt to deconstruct the lan-
guage might seem reasonable from the standpoint of a practicing labor
lawyer, their approach fails to appreciate that “[r]ank-and-file employ-
ees do not generally carry lawbooks to work or apply legal analysis to
company rules as do lawyers, and cannot be expected to have the ex-
pertise to examine company rules from a legal standpoint.” Ingram
Book Co., 315 NLRB 515, 516 fn. 2 (1994).
MACY’S, INC. 7
it as such in its confidentiality policies. This proposition
is contrary to B–-197 (1973), enfd. 510 F.2d 185 (D.C.
Cir. 1975), a case relied upon by my colleagues, the
Board emphasized that the relevant inquiry for whether
the information obtained by an employee constituted
confidential records was “whether timecards located by
the timeclock fall into the category of private or confi-
dential records of the Employer or constitute information
available to all employees in the course of their normal
work relationship.” Cf. Flex Frac Logistics, LLC, 360
NLRB 1004, 1004 (2014) (observing that the confiden-
tial records obtained by an employee were “closely
guarded” by the employer and, although the employee
had access to the underlying information, she never
needed to utilize it in the performance of her duties);
International Business Machines Corp., 265 NLRB 638,
638 (1982) (explaining that the employer’s confidential
wage data had been compiled for internal use only and
was not generally available to employees).
Here, the Respondent’s “Use and Protection” rule
makes no such distinction; the customer names and con-
tact information are available to all employees and used
in the course of their normal employment duties. The
Respondent likely maintains customer names and ad-
dresses in its computer system, which are accessed by
employees, either by entering them into the system or
utilizing them later as part of customer service. The Re-
spondent’s rules, therefore, encompass information
broader than the type of records that the Board has found
to be protected from disclosure as confidential. 4 Indeed,
they cannot be meaningfully distinguished from the rules
found unlawful in Schwan’s and Boch Honda.
In sum, contrary to my colleagues, I find that the Re-
spondent’s overly broad rules barring disclosure of cus-
tomer information would reasonably tend to chill em-
ployees in the exercise of the Section 7 rights. Accord-
ingly, I respectfully dissent from my colleagues’ dismis-
sal of this 8(a)(1) allegation.
Dated, Washington, D.C. August 14, 2017
______________________________________
Mark Gaston Pearce, Member
(NATIONAL LABOR RELATIONS BOARD

4 Contrary to my colleagues, I am not contending that the Act pro-
tects “any disclosure of confidential information from an employer’s
records, regardless of the circumstances, whenever the employee has
access to the information as part of his or her duties.” Rather, I find
that, under the Board’s precedent, if an employer has not treated infor-
mation as a confidential record, and if the information could otherwise
be lawfully disclosed, the employer cannot prohibit such disclosure on
the basis of a conclusory statement that the information is “confiden-
tial” and the employer “maintains” the information.
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
activities.
WE WILL NOT maintain a rule that restricts your use of
information regarding other employees.
WE WILL NOT maintain a rule that restricts your right to
use our logo.
WE WILL NOT maintain a rule that requires you to noti-
fy our human resources department prior to participating
in a government investigation.
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 rescind or revise the rules in our employee
handbook that restrict the use of information regarding
other employees.
WE WILL rescind or revise the rule in our employee
handbook that restricts the use of our logo.
WE WILL rescind or revise the rule in our employee
handbook that requires you to notify our human re-
sources department before participating in a government
investigation.
WE WILL furnish you with inserts for the current em-
ployee handbook that (1) advise that the unlawful provi-
sions have been rescinded or (2) provide lawfully worded
provisions, or WE WILL publish and distribute revised
employee handbooks that (1) do not contain the unlawful
provisions or (2) provide lawfully worded provisions.
MACY’S, INC.
The Board’s decision can be found at
www.nlrb.gov/case/01–CA–123640 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Alejandra Hung, Esq., for the General Counsel.
William Joy, Esq. (Morgan, Brown & Joy), for the Respondent.
Alfred O’Connell, Esq. (Pyle Rome Ehrenberg P.C.), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, ADMINISTRATIVE LAW JUDGE. The par-
ties herein waived a hearing and submitted this case directly to
me by way of a Joint Motion and Stipulation of Facts dated
April 2, 2015, which states as follows:
This is a joint motion by the parties to this case: Macy’s, Inc.
(Respondent); the Charging Party, United Food and Commer-
cial Workers Union, Local 1445 (the Union); and the General
Counsel, to transfer this case to an administrative law judge
pursuant to Section 102.35(a)(9) of the Board’s Rules and Reg-
ulations. The transfer of the case will effectuate the purposes of
the Act and avoid unnecessary costs and delay.
If this motion is granted, the parties agree to the following:1
1. The record in this case consists of the charge in Case 01–
CA–123640, the complaint, the answer, the stipulation of facts,
the statement of issues
Presented, and each party’s Statement of Position.
2. This case is submitted directly to an Administrative Law
Judge for issuance of findings of facts, conclusions of law, and
an Order.
3. The parties waive a hearing before an Administrative Law
Judge.
4. An administrative law judge should set the time for the fil-
ing of briefs.
I. STIPULATION OF FACTS
1. (a) The charge in Case 01–CA–123640 was filed by the
Union on March 3, 2014. (A copy of the charge and affidavit
of service are attached hereto as Exhs. A and B respectively.)
2. (a) On August 28, 2014, the Regional Director for Region
1 of the Board issued a complaint and notice of hearing (the
complaint) alleging that Respondent violated the National La-
bor Relations Act (the Act). (A copy of the complaint is at-
tached hereto as Exh. C). The hearing in this matter has been
postponed indefinitely by oral agreement of the parties.
(b) On September 8, 2014, Respondent filed a timely answer
to the complaint, denying that it had committed any violation of
the Act. (A copy of the answer to the complaint is attached

1 By Order dated April 6, 2015, I accepted the stipulated record and
set May 4, 2015 as the date briefs are due.
hereto as Exh. D).
3. Respondent is a corporation engaged in the operation of
retail department stores throughout the United States, including
a store located in Saugus, Massachusetts (the Saugus store).
Annually, Respondent, in conducting its business operations
derives gross revenues in excess of $500,000 and purchases and
receives at the Saugus store goods valued in excess of $5000
directly from points outside the Commonwealth of Massachu-
setts. At all material times, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
4. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
5. At all material times, Lori Barroso and Danielle McKay
have been Respondent’s human resources manager and store
manager at its Saugus store, respectively, and have been super-
visors of Respondent within the meaning of Section 2(11) of
the and agents of Respondent within the meaning of Section
2(13) of the Act.
6. At all material times, and since at least September 5, 2013,
Respondent has maintained an employee handbook entitled:
“Code of Conduct” (the Handbook) that includes the following
policy regarding Confidential Information:
Being Honest . . . Company Assets and Information
Our Company’s assets must be used, purchased or disposed of
only for the Company’s benefit. We are all obligated to pro-
tect the assets of the Company and use them appropriately.
In addition to merchandise, equipment furnishings and other
property, our Company’s assets include Company infor-
mation, the personal information of the Company’s employ-
ees and customers, any work product we may develop in the
course of our employment and any business or financial op-
portunity that the Company could avail itself of.
Confidential Information
What To Know
Confidential information about our Company, its business, as-
sociates, customers and business partners should be protected.
It can be used only to pursue the Company’s business inter-
ests or to comply with the Company’s legal or other obliga-
tions.
What is confidential information? It could be business or
marketing plans, pricing strategies, financial performance be-
fore public disclosure, pending negotiations with business
partners, information about employees, documents that show
social security numbers or credit card numbers—in short, any
information, which if known outside the Company could
harm the Company or its business partners, customers or em-
ployees or allow someone to benefit from having this infor-
mation before it is publicly known.
Just as our Company requires that its own confidential infor-
mation be protected, our Company also requires that the con-
fidential and proprietary information of others be respected.
What To Do
MACY’S, INC. 9
In performing our duties, we as associates may have access to
confidential information relating to our Company, its busi-
ness, customers, business partners or our co-workers.
We are all trusted to maintain the confidentiality of such in-
formation and to ensure that the confidential information,
whether verbal, written or electronic, is not disclosed except
as specifically authorized. Additionally, it must be used only
for the legitimate business of the Company.
Here are some simple rules to follow.
Confidential information should:
 Be stored in locked file cabinets or drawers and not be
left where others can see it,
 Be clearly marked as confidential whenever possible,
 Be shared only with those who need to see it for Com-
pany business purposes,
 Not be sent to unattended fax machines or printers,
 Not be discussed where others may hear,
 Be shredded when no longer needed.
Always respect the confidentiality of the information of third
parties. We must not use or disclose any of it except as au-
thorized under a written agreement approved by our Law De-
partment.
7. At all material times, and since at least September 5, 2013,
Respondent has maintained a Handbook policy regarding the
Use and Protection of Personal Data, which states in relevant
part:
What To Know
The Company has certain personal data of its present and
former associates, customers and vendors. It respects the pri-
vacy of this personal data and is committed to handling this
data responsibly and using it only as authorized for legitimate
business purposes.
What is considered personal data? It is information such as
names, home and office contact information, social security
numbers, driver’s license numbers, account numbers and oth-
er similar data.
What To Do
We have a strict obligation to use such personal data in a
manner that:
 respects the privacy of our co-workers and our Compa-
ny’s customers and vendors,
 complies with all applicable laws and regulations, and
Company policies,
 upholds any confidentiality or privacy obligations of the
Company in its contracts.
In addition, we must follow all policies and measures adopted
by the Company for the protection of such data from unau-
thorized use, disclosure or access. If any of us becomes aware
of any instance of data being accessed or being used in an un-
authorized manner, we must report it immediately to our Di-
visional Security Administrator or the Law Department.
8. At all material times, and since at least September 5, 2013,
Respondent has maintained the following Handbook policy
regarding Intellectual Property:
What To Know
Trademarks, trade names, copyrights, trade secrets, rights of
publicity and other similar proprietary information are consid-
ered intellectual property.
Our Company owns many valuable intellectual property
rights, such as our trademarks INC and Alfani.
Our Company may lose its rights in the intellectual property
that it already owns, or risk lawsuits and other penalties if we
fail to comply with certain laws.
Our Company also has the right to use the intellectual proper-
ty of certain business partners under agreements. American
Rag is one such example.
We must use our Company’s or a business partner’s intellec-
tual property only as authorized.
If we violate the terms of these agreements, our Company
may not only lose the right to use the licensed intellectual
property, but may also be subject to substantial damage
claims.
What To Do
We must not use the intellectual property rights of others
without their permission.
We may use the intellectual property of the Company only for
the benefit of the Company, and should not allow others to
use our logo or other intellectual property except in accord-
ance with prescribed procedures.
Similarly, if and when the Company is permitted to use the in-
tellectual property of its business partners, we must follow the
reasonable usage guidelines provided by the business partner.
We must not provide to or accept from third parties any pro-
prietary information or the right to use intellectual property
without a written agreement that is prepared by our Law De-
partment.
If any of us makes a discovery, or develops an invention, de-
sign, process, concept or idea in the course of our employ-
ment with the Company, the Company owns it. We should
assist the Company’s lawyers in documenting the Company’s
ownership.
9. At all material times, and since at least September 5, 2013,
Respondent has maintained a Handbook policy regarding Gov-
ernment Investigations and Contacts, which states, in relevant
part:
What To Know
Our Company’s policy is to cooperate with appropriate gov-
ernmental requests or investigation, and to comply with all
applicable laws governing contacts with government officials.
Our Law Department is responsible for managing all such re-
quests, investigations or contacts and providing truthful and
accurate information.
What To Do
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
If we are asked to provide information- verbal or written- for
a government investigation, or if a government representative
appears at our workplace, we must promptly notify our Hu-
man Resources representative or the Law Department and ob-
tain approval for the release of any information. We must not
obstruct, influence, mislead or impede the investigation.
Any contacts with government officials for the purpose of in-
fluencing legislation, regulations or decision-making may
constitute lobbying. We must not contact or communicate
with any government official for such purpose on behalf of
the Company without having specific authorization. If a need
arises to do so, we must contact the Law Department.
10. At all material times, and since at least September 5,
2013, Respondent has maintained a Handbook policy regarding
Confidentiality and Acceptable Use of Company Systems,
which states, in relevant part:
The following standards and procedures apply to your
use of, or access to, all Confidential Information.
1. All Non-Public Information is Sensitive
Any information that is not generally available to the
public that relates to the Company or the Company’s
customers, employees, vendors, contractors, service
providers, Systems, etc., that you receive or to which
you are given access during your employment or while
you are performing services for the Company is classi-
fied as “Confidential” or “Internal Use Only” under the
Macy’s Information Security Policy. As is set forth in
the Macy’s Information Security Policy, internal access
to Confidential Information should only be granted on
a “need to know” basis, and such information should
not be shared with third parties without prior approval
from your Company supervisor and consultation with
the Law Department.
3. Use and Protection of Personal Data
Company maintains certain information regarding its
present and former associates, customers and vendors.
Company respects the privacy of this data where it in-
cludes personally-identifiable information (“Personal
Data”). Personal Data includes names, home and office
contact information, social security numbers, driver's
license numbers, account numbers and other similar da-
ta. Company is committed to handling Personal Data
responsibly and using it only as appropriate for legiti-
mate business purposes. This commitment requires that
all Company employees, contractors, and third parties
who are granted access to Personal Data by Company
follow all policies adopted by the Company for the pro-
tection of such data against unauthorized use, disclo-
sure or access. Such policies, including those’ set forth
in the Macy’ Information Security Policy, may vary
depending on the sensitivity of the Personal Data at is-
sue.
Personal Data may not be shared with any third party
without the written approval of your senior Sales Pro-
motion executive or, for support organizations, your
Chief Executive Officer.
11. The policies (also referred to herein as rules) described
above were not promulgated in response to union activity or
applied in any manner to restrict Section 7 rights.
12. Respondent has not, by any other actions, led employees
to believe that the rules described above prohibit Section 7
activity.
13. On April1, 2014, Macy’s notified its employees through
its intranet portal In-Site (the method customarily used by Ma-
cy’s to notify employees of any changes in company policy)
that it had revised its Code of Conduct by adding to the intro-
ductory page the following:
Nothing in the Code or the policies it incorporates, is intended
or will be applied, to prohibit employees from exercising their
rights protected under federal labor law, including concerted
discussion of wages, hours or other terms and conditions of
employment. This Code is intended to comply with all feder-
al, state, and local laws, including but not limited to the Fed-
eral Trade Commission, Endorsement Guidelines and the Na-
tional Labor Relations Act, and will not be applied or en-
forced in a manner that violates such laws.
II. ISSUE PRESENTED
Whether Respondent violated Section 8(a)(1) of the Act by
maintaining the rules described above in paragraphs 6–10.
III. POSITIONS OF THE PARTIES
A. General Counsel’s Position
Counsel for the General Counsel contends that the cited
Handbook provisions are overly broad and have a reasonable
tendency to interfere with, restrain, and coerce employees in
their exercise of the rights guaranteed in Section 7 of the Act.
The Handbook’s Confidential Information Policy violates
Section 8(a)(1) of the Act because, by prohibiting employees
from disclosing any company information and information
about employees, in the absence of clarification, it could be
reasonably construed by employees to preclude discussion of
wages and other terms of conditions of employment among
fellow employees, and restrict the exercise of their Section 7
rights.
The Handbook’s Use and Protection of Personal Data Policy
contains an unqualified prohibition against the disclosure of
any information about employees, former employees, and cus-
tomers, and violates Section 8(a)(1) of the Act insofar as it
could be reasonably construed by employees to restrict discus-
sion of terms and conditions of employment among fellow
employees, and restrict the exercise of their Section 7 rights.
The Handbook’s Intellectual Property Policy violates Section
8(a)(1) of the Act because it is overbroad and could be reasona-
bly construed by employees to prohibit the use of the Respond-
ent’s logo or trademark as a means to identify the Respondent
in the course of Section 7 activity related to terms and working
MACY’S, INC. 11
conditions of employment, including its use in employee com-
munications such as leaflets, signs, and even photos, thereby
restricting the exercise of their Section 7 rights.
Further, the Handbook’s Government Investigations and
Contacts Policy violates Section 8(a)(1) because it could be
reasonably construed to prohibit employees from participating
in government investigations and require employees to notify
Respondent’ human resources department or law department
first. Further, the policy is overbroad to the extent that as it
affects employees’ contact with the National Labor Relations
Board and other law enforcement officials about wages, hours,
and working conditions.
The Handbook’s Confidentiality and Acceptable Use of
Company Systems Policy is overbroad and violates Section
8(a)(1) because it prohibits employees from disclosing any
information about the Company, employees, and customers, in
the absence of clarification, and could be reasonably construed
by employees to preclude discussion of terms and conditions of
employment, among fellow employees and restrict the exercise
of their Section 7 rights.
Because the Handbook applies to employees at Respondent’s
facilities throughout the United States, the General Counsel
seeks a nationwide remedy for the unfair labor practices. Spe-
cifically, the General Counsel seeks rescission of the above-
described rules, written notice to employees that the above
rules have been rescinded and a notice posting, applicable to all
Respondent’s facilities.
B. Respondent’s Position
Respondent asserts that the sections of its code of conduct al-
leged to be unlawful are not unlawful when considered in the
proper context because employees would not reasonably con-
strue the language to prohibit Section 7 activity. There is limit-
ing language in the provisions of the code in question which
would clarify to employees that the rule does not restrict Sec-
tion 7 rights.
Page 16 of the Code of Conduct, Confidential Information,
has language which limits the definition to information “which
if known outside the Company could harm the Company or its
business partners, customers or employees or allow someone to
benefit from having this information before it is publicly
known.” Respondent contends that discussion by employees of
wages and conditions of employment could not be reasonably
construed by employees as information that would harm the
company.
Page 18 of the Code of Conduct, Personal Data, gives exam-
ples of data, e.g. “social security numbers, driver’s license
numbers, account numbers and other similar data” whose dis-
closure would be illegal or unprotected conduct such that the
provision could not be reasonably construed to cover protected
activity.
Next, page 22 of the Code of Conduct, Intellectual Property,
does not restrict employees in using the Company’s logo. The
clause prohibits allowing “others” to use the logo. Furthermore,
this entire provision, when read in context, would lead any
employee to understand that it is to protect intellectual and
proprietary property and not to restrict an employee from using
the Company’s name/logo on a picket sign or for any other
Section 7 activity.
Page 24 of the Code of Conduct, Government Investigations,
states in the opening sentence that the company policy is to
“comply with all applicable laws governing contacts with gov-
ernment officials.” The policy does not prohibit employees
from speaking to a government official, such as an NLRB
agent, and when read in context with the opening sentence
would not be reasonably construed to do so.
Page 31 of the Code of Conduct, Confidentiality and Ac-
ceptable Use of Company Systems is a detailed seven-page
policy. Personal Data lists, as on page 18 of the Code of Con-
duct, “social security numbers, driver’s license numbers, ac-
count numbers and other similar data” and thus employees who
read the policy as a whole would not believe it extended to
terms and conditions of employment.
Furthermore, respondent contends that a “harbor” or “sav-
ings clause” in the Code of Conduct informs all of its provi-
sions and precludes a finding that employees would reasonably
read any of the challenged work rules as unlawfully restricting
their Section 7 rights.
C. Union’s Position
The Union concurs with the General Counsel’s position.
This stipulation is made without prejudice to any objection
that any party may have as to the relevance of any facts stated
herein.
Analysis
In determining whether any, or all, of the above-referenced
provisions contained in the Employee Handbook violate the
Act, the initial inquiry is to Lutheran Heritage Village- Livonia,
343 NLRB 646 (2004). Under that test, the initial inquiry is
whether the rule at issue explicitly restricts activities that are
protected by Section 7 of the Act; if so, it is unlawful. If not,
the finding of a violation is dependent upon a showing of one
of the following: employees would reasonably construe the rule
to prohibit protected activity, or the rule has been applied to
restrict the exercise of that activity. As the rule does not explic-
itly restrict activities protected by Section 7 of the Act, and as
the parties, as part of the joint motion and stipulation of facts,
agreed these rules were not promulgated in response to union
activity, or were applied in a manner to restrict Section 7 rights,
the test for each of these challenged restrictions is whether
employees could reasonably construe any or all of them to re-
strict protected activity. If the answer is that they could reason-
ably be construed to do so, the final question is whether the
savings clause contained in the revised Code of Conduct effec-
tive April 1, 2014, precludes a finding of a violation of any of
these rules.
Confidential Information
There are numerous provisions in the employee handbook
that counsel for the General Counsel alleges unlawfully re-
stricts employees in the exercise of their Section 7 rights, under
the cover of Confidential Information. Under Being Honest . . .
Company Assets and Information, in paragraph 6 of the stipula-
tion of facts, the Handbook states, inter alia: “We are all obli-
gated to protect the assets of the Company and use them appro-
priately. . .our Company’s assets include Company information,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
the personal information of the Company’s employees and
customers.” Under Confidential Information What to Know, the
Handbook states: “Confidential Information about our Compa-
ny, its business, associates, customers and business partners
should be protected . . . What is confidential information? It
could be . . . information about employees . . . in short, any
information, which if known outside the Company could harm
the Company or its business partners, customers or employees
or allow someone to benefit from having this information be-
fore it is publicly known.” Under “What to Do,” the Handbook
continues:
In performing our duties, we as associates may have access to
confidential information relating to our Company, its busi-
ness, customers, business partners and our co-workers.
We are all trusted to maintain the confidentiality of such in-
formation and to ensure that the confidential information,
whether verbal, written or electronic, is not disclosed except
as specially authorized.
Here are some simple rules to follow.
Confidential information should:
Be shared only with those who need to see it for Company
business purposes.
Not be discussed where others may hear.
In paragraph 7 of the stipulation, under “What to Know,” the
Handbook states:
The Company has certain personal data of its present and
former associates, customers and vendors. It respects the pri-
vacy of this personal data and is committed to handling this
data responsibly and using it only as authorized for legitimate
business purposes.
What is considered personal data? It is information such as
names,
home and office contact information . . . and other similar da-
ta.
Under “What To Do” the Handbook states: “We have a strict
obligation to use such personal data in a manner that:
Respects the privacy of our co-workers and our Company’s
customers and vendors.”
In paragraph 10, under Confidentiality and Acceptable Use
of Company Systems, The section entitled: “All Non-Public
Information is Sensitive” states, inter alia:
Any information that is not generally available to the public
that relates to the Company or the Company’s customers, em-
ployees, vendors, contractors, service providers, Systems, etc.,
that you receive or to which you are given access during your
employment or while you are performing services for the
Company is classified as “Confidential” or “Internal Use On-
ly” under the Macy’s Information Security Policy. As is set
forth in the Macy’s Information Security Policy, internal ac-
cess to Confidential Information should only be granted on a
"need to know" basis, and such information should not be
shared with third parties without prior approval from your
Company supervisor and consultation with the Law Depart-
ment.
The section entitled: “Use and Protection of Personal Data
“states:
Company maintains certain information regarding its present
and former associates, customers and vendors. Company re-
spects the privacy of this data where it includes personally-
identifiable information (“Personal Data”). Personal Data in-
cludes names, home and office contact information, social se-
curity numbers, driver’s license numbers, account numbers
and other similar data. Company is committed to handling
Personal Data responsibly and using it only as appropriate for
legitimate business purposes. This commitment requires that
all Company employees, contractors, and third parties who
are granted access to Personal Data by Company follow all
policies adopted by the Company for the protection of such
data against unauthorized use, disclosure or access. Such poli-
cies, including those set forth in the Macy’s Information Se-
curity Policy, may vary depending on the sensitivity of the
Personal Data at issue.
Personal Data may not be shared with any third party without
the written approval of your senior Sales Promotion executive
or, for support organizations, your Chief Executive Officer.
All of the above provisions prohibit the employees from di-
vulging “the personal information of the Company’s employees
and customers,” “information about employees . . . which if
known outside the Company could harm the Company or its . . .
employees,” “confidential information,” “information such as
names, home and office contact information,” “any information
that is not generally available to the public that relates to the
Company or the Company’s . . . employees,” “personally-
identifiable information (Personal Data). Personal Data in-
cludes names, home and office contact information. . . .”
The test under Lutheran Heritage, is whether employees
could reasonably construe these rules as prohibiting, or limiting
their protected activities. In evaluating contested rules of con-
duct, the Board attempts to work out “. . . an adjustment be-
tween the undisputed right of self-organization assured to em-
ployees under the Wagner Act and the equally undisputed right
of employers to maintain discipline in their establishments.”
Republic Aviation v. NLRB, 324 U.S. 793, 797–798 (1945). In
other words, while employees have a right to engage in union
and concerted activities, employers have “a substantial and
legitimate interest in maintaining the confidentiality of private
information.” Lafayette Park Hotel, 326 NLRB 824, 826
(1998). However, in formulating its privacy and confidentiality
rules, the employer must tread carefully and not venture into its
employees’ Section 7 rights.
In Triana Industries, 245 NLRB 1258 (1979), the Board held
that Section 7 “encompasses the right of employees to ascertain
what wages are paid by their employer, as wages are a vital
term and condition of employment.” Aroostook County Re-
gional Opthamology Center, 317 NLRB 218, 220 (1995), enfd.
in part 81 F.3d 209 (D.C. Cir 1996) held that wage discussions
among employees are considered to be at the core of Section 7
rights because wages, “probably the most critical element in
employment,” are “the gist on which concerted activity feeds.”
MACY’S, INC. 13
In Parexel International, LLC, 356 NLRB 516 (2011), the
Board stated: “But whether such discussions lead to union ac-
tivity or not, our precedents provide that restrictions on wage
discussions are violations of Section 8(a)(1).”
As stated above, the ultimate issue herein is whether em-
ployees reading these rules, would reasonably construe them as
restricting their Section 7 rights. In Lafayette Park Hotel, supra,
the provision stated that the following conduct is unacceptable:
“Divulging Hotel-private information to employees or other
individuals or entities that are not authorized to receive that
information.” The Board dismissed this allegation saying that
employees would not read it as prohibiting the discussion of
wages among fellow employees or with a union:
Clearly, businesses have a substantial and legitimate interest
in maintaining the confidentiality of private information, in-
cluding guest information, trade secrets, contracts with sup-
pliers, and a range of other proprietary information. Although
the term “Hotel-private” is not defined in the rule, employees
in our view reasonably would understand that the rule is de-
signed to protect that interest rather than to prohibit the dis-
cussion of their wages.
Similarly, in Ark Las Vegas Restaurant Corp., 335 NLRB
1284, 1290–1291 (2001), the challenged rule stated:
It is our policy to ensure that the operations, activities and af-
fairs of Ark Las Vegas and our clients are kept confidential to
the greatest extent. If, during their employment, employees
acquire confidential or proprietary information about Ark Las
Vegas or its clients, such information is to be handled in strict
confidence and not to be discussed.
Citing Lafayette Park, supra, the Board dismissed this allega-
tion finding that employees would not read this provision as
restricting their right to discuss wages and other conditions of
employment with fellow employees or a union. As neither
Lafayette Park nor Ark specifically restrict the flow of employ-
ee information, they can easily be differentiated from the in-
stant matter.
In Cintas Corp., 344 NLRB 943 (2005), the challenged pro-
vision stated: “We honor confidentiality. We recognize and
protect the confidentiality of any information concerning the
company, its business plans, its partners2, new business efforts,
customers, accounting and financial matters.” The Board found
this provision unlawful due to the unqualified prohibition of the
release of any information about “partners”-employees, finding
that employees would reasonably construe this to restrict dis-
cussions of their terms of employment. Similarly, in Double
Eagle Hotel & Casino, 341 NLRB 112, 114 (2004), the restric-
tive provision stated: “You are not, under any circumstances,
permitted to communicate any confidential or sensitive infor-
mation concerning the Company or any of its employees to any
non-employee without approval from the General Manager or
the President.” In finding that this provision violated the Act,
the Board found that employees could reasonably read this as
chilling their Section 7 rights: “It is hard to imagine a rule that
more explicitly restricts discussion of terms and conditions of

2 The company refers to its employees as “partners.”
employment more than the Confidential Information rule here-
in.” Similarly, the restrictions on the release of personal infor-
mation of the Respondent’s employees, including their names
and home and office contacts, obviously restricts employees in
their Section 7 rights to discuss their terms and conditions of
employment with fellow employees, as well as their ability to
notify a union of other employees of the Respondent who might
be interested in participating in the union movement. The fact
that this restriction was repeated so many times in the Hand-
book further enforces the belief that employees could reasona-
bly believe that it interferes with their Section 7 rights. I there-
fore find that these restrictions violate Section 8(a)(1) of the
Act. Flamingo Hilton-Laughlin, 330 NLRB 287 (1999).
Counsel for the General Counsel also challenges the re-
strictions on the use of information regarding customers and
vendors. In certain situations, employees are permitted to use
such information in furtherance of their protected concerted
activities, and Counsel for the General Counsel argues that
these restrictions are also unlawful. In Trinity Protection Ser-
vices, Inc., 357 NLRB 1382 (2011), the Board stated, “. . .
employees’ concerted communications regarding matters af-
fecting their employment with their employer’s customers or
with other third parties, such as governmental agencies, are
protected by Section 7 and, with some exceptions not applica-
ble here, cannot lawfully be banned.” I therefore find that this
restriction violates Section 8(a)(1) as well. Kinder-Care Learn-
ing Centers, 299 NLRB 1171 (1990); Boch Imports, Inc., 362
NLRB No. 83, slip op. 1 fn. 4 (2015).
It is further alleged that the Respondent violated the Act by
prohibiting the use of the Respondent’s “logo or other intellec-
tual property” by others. Although not as obvious as prohibiting
the use or release of information about its employees, this pro-
hibition could also be reasonably understood to limit its em-
ployees, or a union, from publicizing a dispute with the Re-
spondent by employing its logo in its distributed information.
This could be an effective means of publicizing a dispute as the
Respondent’s logo is well known and easily recognized. In
addition, the Respondent cannot defend that it has a legitimate
business concern for forbidding the use of its logo; there is no
confidentiality issue with the logo and I can see no valid busi-
ness reason for this rule. I therefore find that the maintenance
of this rule violates Section 8(a)(1) of the Act. Boch Imports,
Inc., supra at slip op. 2; Pepsi Cola Bottling Co., 301 NLRB
1008 (1991).
The final allegation relates to the Respondent’s Handbook
policy regarding Government Investigations. After stating that
it is the Respondent’s policy to cooperate with appropriate gov-
ernmental requests or investigations, it states, inter alia:
If we are asked to provide information- verbal or written- for
a government investigation, or if a government representative
appears at our workplace, we must promptly notify our Hu-
man Resources representative or the Law Department and ob-
tain approval for the release of any information. We must not
obstruct, influence, mislead or impede the investigation.
Even though this provision states that it is the Respondent’s
policy to cooperate with governmental investigations, and that
they will not obstruct or impede investigations, I believe that it
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
is reasonable to conclude that employees who are asked to give
a statement to a Board agent, or an agent of any other govern-
mental agency, would be hesitant to participate in such a pro-
cess knowing that they would first have to notify Respondent’s
representatives of their participation. In DirecTV, 359 NLRB
545, 546 (2013), the rule stated: “If law enforcement wants to
interview or obtain information regarding a DIRECTV employ-
ee . . . the employee should contact the security department . .
who will handle contact with law enforcement agencies . . . The
Board found that this rule violated the Act because it would
lead reasonable employees to conclude that they had to contact
the company’s security department before cooperating with the
Board when the issue might involve their wages, hours and
working conditions. In Cellular Sales of Missouri, LLC, 362
NLRB No. 27, slip op. 1 fn. 2 (2015), the Board stated that a
rule violates the Act, “if employees would reasonably believe
the rule or policy interferes with their ability to file a Board
charge or access to the Board’s processes, even if the rule does
not expressly prohibit access to the Board.” I therefore find that
by requiring employees to notify Respondent’s representatives
prior to participating in a governmental investigation, the Re-
spondent violated Section 8(a)(1) of the Act. Trinity Protection
services, supra.
The final issue is whether the savings clause that Respondent
sent to its employees on April 1, 2014 neutralizes these unlaw-
ful provisions. The Board has strict policies for employers at-
tempting to repudiate unlawful rules. In DirecTV, 359 NLRB
545, 548 (2013), the Board stated:
In order for a repudiation to serve as a defense to an unfair la-
bor practice finding, it must be timely, unambiguous, specific
in nature to the coercive conduct, and untainted by other un-
lawful conduct. There must be adequate publication of the re-
pudiation to the employees involved, and the repudiation must
assure employees that, going forward, the employer will not
interfere with the exercise of their Section 7 rights.
In First Transit, Inc., 360 NLRB 619, 622, 623 (2014), the
Board stated:
We agree that an employer’s express notice to employees ad-
vising them of their rights under the Act may, in certain cir-
cumstances, clarify the scope of an otherwise ambiguous and
unlawful rule. In our view, however, inclusion of the FOA
policy in the handbook under the circumstances presented
here does little to ensure that employees would not read oth-
erwise overbroad rules as restricting their Section 7 rights.
First, the policy is too narrow, focusing solely on union organ-
izational rights. An effective “safe harbor” provision of this
kind, also referred to as a “savings clause,” should adequately
address the broad panoply of rights protected by Section 7 of
the Act . . . The policy does not expressly reference these rules
and the rules do not expressly reference the policy.
The principal shortcoming of the Respondent’s attempted
savings clause is that it is written in a “generic” manner, while
the unlawful restrictions are very specific. While the Respond-
ent’s Handbook provisions unlawfully restrict its employees
use of “confidential information,” and the use of the Respond-
ent’s logo, as well as cooperating with governmental investiga-
tions, the savings clause simply tells them that nothing con-
tained in the handbook is intended to limit them from engaging
in their rights protected by the Act, including protected con-
certed activities. This is far from language that is “specific in
nature to the coercive conduct” and “does not expressly refer-
ence those rules,” as required by DirecTV and First Transit,
supra. I would further note that the Respondent did not notify
its employees of its safe harbor rule until approximately seven
months after it began maintaining the rules found to be unlaw-
ful in its Employee Handbook. I therefore find that the Re-
spondent’s attempt to repudiate the unlawful rules described
herein is ineffective.
CONCLUSIONS OF LAW
1. The Respondent has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by un-
lawfully restricting its employees’ use of information regarding
their fellow employees and the Respondent’s customers, the use
of the Respondent’s logo, and requiring the employees to notify
Respondent’s human resources representative prior to provid-
ing information for a government investigation.
THE REMEDY
Having found that the Respondent has unlawfully maintained
rules restricting its employees use of what it considers confi-
dential information regarding other employees and its custom-
ers, the use of Respondent’s logo and the participation in gov-
ernmental investigations without prior notice to the Respond-
ent’s human resources department, I recommend that the Re-
spondent be required to rescind these provisions and notify all
of its employees, nationwide that it has done so and that these
provisions are no longer in effect and that it post a notice to its
employees to this effect.
On the foregoing stipulated record, conclusions of law and
the entire record, I hereby issue the following recommended3
ORDER
The Respondent, Macy’s, Inc., its officers, agents, successors
and assigns, shall
1. Cease and desist from
(a) Maintaining overly broad rules in its Employee Hand-
book that restrict its employees use of information regarding
fellow employees and, but to a lesser extent, the Respondent’s
customers.
(b) Maintaining an overly broad rule in its employee hand-
book that restricts the use of the Respondent’s logo.
(c) Maintaining an overly broad rule in its employee hand-
book that requires employees to notify the Respondent’s human
resources department prior to participating in a government

3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
MACY’S, INC. 15
investigation.
(d) In any like or related manner interfering with, restraining
or coercing employees in the exercise of their rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days, rescind and/or revise all the rules re-
ferred to in paragraphs 1(a) through 1(c) above.
(b) Furnish all employees at all of the Respondent’s facilities
nationwide with (1) inserts for the current employee handbook
that advise that the unlawful rules have been rescinded, or (2)
the language of lawful rules on adhesive backing that will cover
or correct the unlawful rules; or (3) publish and distribute a
revised employee handbook that does not contain the unlawful
rules.
(c) Within 14 days after service by the Region, post at all of
its facilities nationwide copies of the attached notice marked
“Appendix.”4 Copies of the notice, on forms provided by the
Regional Director for Region 1, 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. 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 employ-
ees employed by the Respondent at any time since September
5, 2013.
(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. May 12, 2015
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.
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

4 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.”
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain any rules in our Employee Handbook
or elsewhere which restrict your right to discuss your wages
and other terms or conditions of employment, or our customers
or vendors, with your fellow employees and others;
WE WILL NOT maintain any rules in our employee handbook
which restrict your right to talk to governmental agencies;
WE WILL NOT unlawfully restrict the right of others to use our
logo in conjunction with your protected concerted activities;
and
WE WILL NOT in any like or related manner interfere with, re-
strain or coerce you in the exercise of the rights listed above.
WE WILL, within 14 days, rescind and/or revise the overly
broad rules described above; and
WE WILL furnish all employees with (1) inserts for the cur-
rent employee handbook that advise that the unlawful rules
have been rescinded, or (2) the language of lawful rules on
adhesive backing that will cover or correct the unlawful rules,
or (3) publish and distribute revised handbooks that do not
contain the unlawful rules.
MACY’S, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/01–CA–123640 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.