MACY'S, INC.

National Labor Relations Board - Administrative Judge Opinions

May 12, 2015

01-CA-123640 (N.L.R.B. May. 12, 2015)

JD(NY)–21-15
Saugus, MA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
MACY’S, INC.
and Case No. 1-CA-123640
UNITED FOOD AND COMMERCIAL
WORKERS UNION, LOCAL 1445
Alejandra Hung, Esq., Counsel for the General Counsel.
Alfred O’Connell, Esq., Pyle Rome Ehrenberg P.C., Counsel for the Charging Party.
William Joy, Esq., Morgan, Brown & Joy, Counsel for the Respondent.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: The parties 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 Commercial 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 Regulations. 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 filing of briefs.

1 By Order dated April 6, 2015, I accepted the Stipulated Record and set May 4, 2015 as the
date briefs are due.
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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 Exhibits A and B
respectively.)
2. (a) On August 28, 2014, the Regional Director for Region One of the Board
issued a Complaint and Notice of Hearing (the Complaint) alleging that Respondent
violated the National Labor Relations Act (the Act). (A copy of the Complaint is
attached hereto as Exhibit 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 hereto as Exhibit 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 $5,000 directly from points outside the
Commonwealth of Massachusetts. 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 supervisors 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 protect the assets of the Company
and use them appropriately.
In addition to merchandise, equipment furnishings and other property, our
Company's assets include Company information, the personal information of
the Company's employees and customers, any work product we may develop
in the course of our employment and any business or financial opportunity that
the Company could avail itself of.
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Confidential Information
What To Know
Confidential information about our Company, its business, 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 performance 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 allow 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 others be respected.
What To Do
In performing our duties, we as associates may have access to confidential
information relating to our Company, 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 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 Company 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 authorized under a written agreement
approved by our Law Department.
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:
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What To Know
The Company has certain personal data of its present and former
associates, customers and vendors. It respects the privacy 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 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 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 unauthorized use,
disclosure or access. If any of us becomes aware of any instance of data
being accessed or being used in an unauthorized manner, we must
report it immediately to our Divisional 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 considered 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 property of certain
business partners under agreements. American Rag is one such example.
We must use our Company's or a business partner's intellectual 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
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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 accordance with prescribed procedures.
Similarly, if and when the Company is permitted to use the intellectual
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 proprietary
information or the right to use intellectual property without a written
agreement that is prepared by our Law Department.
If any of us makes a discovery, or develops an invention, design, process,
concept or idea in the course of our employment 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 Government Investigations and Contacts,
which states, in relevant part:
What To Know
Our Company's policy is to cooperate with appropriate governmental requests
or investigation, and to comply with all applicable laws governing contacts
with government officials. Our Law Department is responsible for managing all
such requests, investigations or contacts and providing truthful and accurate
information.
What To Do
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 Human Resources representative or the Law
Department and obtain 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 influencing
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.
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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 classified 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 includes 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 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 policies,
including those' set forth in the Macy's Information Security 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.
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 Macy's to notify employees of any changes in
company policy) that it had revised its Code of Conduct by adding to the
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introductory 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 federal, state, and local laws, including but not limited to the
Federal Trade Commission, Endorsement Guidelines and the National
Labor Relations Act, and will not be applied or enforced 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.
Ill. 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 customers, and violates Section 8(a)(1) of the Act insofar as it
could be reasonably construed by employees to restrict discussion 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 reasonably construed by employees to prohibit the
use of the Respondent's logo or trademark as a means to identify the Respondent in the
course of Section 7 activity related to terms and working conditions of employment,
including its use in employee communications 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's
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.
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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. Specifically, 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 alleged to be
unlawful are not unlawful when considered in the proper context because employees
would not reasonably construe the language to prohibit Section 7 activity. There is
limiting language in the provisions of the Code in question which would clarify to
employees that the rule does not restrict Section 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 examples of data, e.g.
"social security numbers, driver's license numbers, account numbers and other similar
data" whose disclosure 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 government 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 Acceptable Use of
Company Systems is a detailed seven-page policy. Personal Data lists, as on Page 18
of the Code of Conduct, "social security numbers, driver's license numbers, account
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.
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Furthermore, Respondent contends that a "safe harbor" or "savings clause" in the Code
of Conduct informs all of its provisions 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 explicitly 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 restrict protected activity. If the answer is that they
could reasonably be construed to do so, the final question is whether the savings clause
contained in the revised Code of Conduct effective 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 restricts 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 Stipulation of Facts, the Handbook states, inter alia: “We are
all obligated to protect the assets of the Company and use them appropriately…our Company’s
assets include Company information, the personal information of the Company’s employees and
customers.” Under Confidential Information What to Know, the Handbook states:
“Confidential Information about our Company, 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 before 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 business, customers, business partners and our co-workers.
We are all trusted to maintain the confidentiality of such information and to ensure that
the confidential information, whether verbal, written or electronic, is not disclosed except
as specially authorized.
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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 privacy 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 data.
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, 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 classified 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.
The Section entitled Use and Protection of Personal Data states:
Company maintains certain information regarding its present and former
associates, customers and vendors. Company respects the privacy of this
data where it includes 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 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 policies,
including those set forth in the Macy's Information Security Policy, may
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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 divulging “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 includes 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 conduct, the Board attempts to work out “…an adjustment between the undisputed right
of self-organization assured to employees 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 Regional
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.” In Parexel International, LLC, 356 NLRB No. 82 (2011), the
Board stated: “But whether such discussions lead to union activity 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 employees 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, including guest information, trade secrets,
contracts with suppliers, 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 designed to protect that interest rather than to
prohibit the discussion of their wages.
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Similarly, in Ark Las Vegas Restaurant Corporation, 335 NLRB 1284, 1290-1291 (2001), the
challenged rule stated:
It is our policy to ensure that the operations, activities and affairs 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 allegation 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 employee information, they can easily be differentiated from the instant
matter.
In Cintas Corporation, 344 NLRB 943 (2005), the challenged provision 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 discussions of their terms of employment. Similarly, in
Double Eagle Hotel & Casino, 341 NLRB 112, 114 (2004), the restrictive provision stated: “You
are not, under any circumstances, permitted to communicate any confidential or sensitive
information 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
employment more than the Confidential Information rule herein.” Similarly, the restrictions on the
release of personal information 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 Handbook
further enforces the belief that employees could reasonably believe that it interferes with their
Section 7 rights. I therefore 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 restrictions 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 Services,
Inc., 357 NLRB No. 117 (2011), the Board stated, “…employees’ concerted communications
regarding matters affecting 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 applicable here, cannot lawfully be banned.” I therefore find that this restriction violates
Section 8(a)(1) as well. Kinder-Care Learning Centers, 299 NLRB 1171 (1990); Boch Imports,
Inc., 362 NLRB No. 83, fn. 4 (2015).

2 The company refers to its employees as “partners.”
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It is further alleged that the Respondent violated the Act by prohibiting the use of the
Respondent’s “logo or other intellectual property” by others. Although not as obvious as
prohibiting the use or release of information about its employees, this prohibition could also be
reasonably understood to limit its employees, or a union, from publicizing a dispute with the
Respondent 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 business
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 p.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
governmental 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
Human Resources representative or the Law Department and obtain 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 is reasonable to conclude that employees who are asked to give a statement to a Board
agent, or an agent of any other governmental agency, would be hesitant to participate in such a
process knowing that they would first have to notify Respondent’s representatives of their
participation. In DirecTV, 359 NLRB No. 54, at p.2 (2013), the rule stated: “If law enforcement
wants to interview or obtain information regarding a DIRECTV employee…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, fn.2, 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 Respondent 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 unlawful provisions. The Board has strict policies for employers
attempting to repudiate unlawful rules. In DirecTV, 359 NLRB No. 54, at p. 4 (2013), the Board
stated:
In order for a repudiation to serve as a defense to an unfair labor practice finding, it must
be timely, unambiguous, specific in nature to the coercive conduct, and untainted by
other unlawful conduct. There must be adequate publication of the repudiation 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.
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In First Transit, Inc., 360 NLRB No. 72, at p. 4-5 (2014), the Board stated:
We agree that an employer’s express notice to employees advising them of their rights
under the Act may, in certain circumstances, 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 otherwise overbroad rules as restricting their Section 7 rights. First, the
policy is too narrow, focusing solely on union organizational 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
Respondent’s Handbook provisions unlawfully restrict its employees use of “confidential
information,” and the use of the Respondent’s logo, as well as cooperating with governmental
investigations, the savings clause simply tells them that nothing contained in the handbook is
intended to limit them from engaging in their rights protected by the Act, including protected
concerted activities. This is far from language that is “specific in nature to the coercive conduct”
and “does not expressly reference 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 unlawful in its
Employee Handbook. I therefore find that the Respondent’s attempt to repudiate the unlawful
rules described herein is ineffective.
Conclusions of Law
1. The Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. The Union has been a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent violated Section 8(a)(1) of the Act by unlawfully 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 providing information for a government
investigation.
The Remedy
Having found that the Respondent has unlawfully maintained rules restricting its
employees use of what it considers confidential information regarding other employees and its
customers, the use of Respondent’s logo and the participation in governmental investigations
without prior notice to the Respondent’s Human Resources Department, I recommend that the
Respondent 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.
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Upon 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 Handbook 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 Handbook that restricts the use of
the Respondent’s logo.
(c) maintaining an overly broad rule in its Employee Handbook that requires employees
to notify the Respondent’s Human Resources Department prior to participating in a government
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 effectuate the policies of the Act.
(a) Within 14 days, rescind and/or revise all the rules referred 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 Respondent’s authorized
representative, 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.
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

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
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 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.”
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proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
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
_______________________________
Joel P. Biblowitz
Administrative Law Judge
JD(NY)–21-15

APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
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, restrain 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 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 revised
handbooks that do not contain the unlawful rules.
MACY’S, INC.
(Employer)
Dated________________ By______________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
JD(NY)–21-15

10 Causeway Street, Boston Federal Building, 6th Floor, Room 601
Boston, Massachusetts 02222–1072
Hours of Operation: 8:30 a.m. to 5 p.m.
617-565-6700.
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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 617-565-6701.