Confidentiality Agreements

jds · September 2002

I inadvertently posted this in the wrong forum yesterday. #-o
I'm hoping if I put it in the correct one, I will get some responses.

The accountant in our business department is a member of the staff union. Her job duties make her privy to a lot of confidential information (for instance, payroll). Although she has been told many times that she must maintain the confidentiality of the information she receives, there is nothing in writing to this effect. Can we require her to sign a confidentiality agreement stating that she will not divulge any confidential information received in the course of her job duties to anyone, including members of her union?

Thanks.

Don D · September 2002

Absolutely you should do that. Confidentiality is company policy and nothing connected with union membership frees one from acknowledging and following the company's policy on confidentiality. Your H.R. staff should sign similar acknowledgements. Anyone who refuses to sign such in my opinion is headed for termination no matter how delicately you have to manage it.

vmiller MO · September 2002

If I understand your situation, the employee is a member of the union. Since the confidentiality agreement would become a term and condition of employment and since the employee could be disciplined or discharged for violating it, I believe that the NLRB will view it to be a mandatory subject of bargaining. You therefore would be wise to discuss the entire issue with the Union before requiring the employee to sign the confidentiality agreement. By discussing the entire issure, I mean discussing the need for the confidentiality agreement, the content of the agreement, the way discipline will be imposed for a violation of the agreement, etc.

jds · September 2002

VMiller,

That is the exactly the situation. I was afraid the answer you gave was what I would hear -- it has to be the subject of bargaining. (I like DonD's answer better, though.) Thanks.

Don D · September 2002

[font size="1" color="#FF0000"]LAST EDITED ON 09-12-02 AT 02:15PM (CST)[/font][p]Both responses are only one thing......opinions. The managements rights article of your contract should clearly set out the company's explicit rights to unilaterally determine and control such things as policies, practices and procedures for the conduct of the business; and, to change such at its will. Aside from the discussion at hand, I am wondering under what conditions our company would ever entrust a union member with internal information as sensitive as payroll. I would certainly find a way to classify any such position as exempt and perhaps supervisory as well.

HS · September 2002

I'm afraid that vmiller may be correct. It depends on your union, but you will have to run it by your union rep. This is why we have no union employees in our world of HR / benefits / payroll. Too much conflict of interest.

jds · September 2002

I have been advocating that this position should be removed from the bargaining unit. Unfortunately, everything we do (even things that I believe are covered by our management rights clause) have been landing us in arbitration lately. We can only spend so much money on arbitrations and then it comes down to the possibility of layoffs. Management is hesitant to take on anything right now that will cause yet another arbitration, so I'm probably not going to get anywhere with the idea of reclassifying the position.

So far, the employee hasn't divulged any confidential information (at least as far as we are aware). The question was raised about the confidentiality agreement, and I knew I could bounce it off you guys. Thanks for your responses.

Don D · September 2002

HS and VMiller are correct, so I reverse myself on the notion that requiring this would not trigger bargaining. I have learned something and admit the fallacy of my ways, and will take my lashes. That's the whole purpose of the forum, huh? Having verified what they say with one of our labor attorneys, he has echoed what they say. But, he also asks the question as to how in the world it came about that a person in a position covered by the collective bargaining unit was entrusted with such confidential information and suggests that it could easily be handled through legitimately making the position exempt. x:-8

vmiller MO · September 2002

It is not impossible to remove"work" or duties from the bargaining unit. However, one must first realize that changing the bargaining unit is not a mandatory subject of bargaining, meaning that the union does not have to bargain about changing the bargaining unit. Second, it is necessary to look at the contract to determine what the management rights clause states, what prohibitions there are concerning non-bargaining unit members performing bargaining unit work, seniority provisions, change of operation provisions, etc. I suggest that you purchase "How Arbitration Works, Fifth Edition," by Elkouri & Elkouri. (see pages 757-763). There are also supplements to the main volume. The book is published by the ABA Section of Labor and Employment Law, in conjunction with The Bureau of National Affairs, Inc. You can order it by calling 800-960-1220 or on the web at [url]www.bna.com/bnabooks[/url].

Confidentiality Agreements

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