Prohibition on Discussing Investigation in Workplace violates NLRA
Request that Employee Not Discuss Employer’s Ongoing
Investigation Violates Labor Law
In Banner Health System d/b/a Banner Estrella Med. Ctr., 358 NLRB 93 (July 30, 2012), the National Labor Relations Board (“NLRB”) recently ruled that an Arizona hospital violated the National Labor Relations Act (“NLRA”) just by its human resources consultant asking employees interviewed in connection with an internal investigation not discuss the matter with their co-workers while the investigation was ongoing. The Board’s ruling makes clear that an employer’s mere suggestion (as opposed to a mandate or written policy) to employees that they not speak to others regarding an internal investigation could interfere with, restrain or coerce employees in the exercise of their Section 7 statutory rights, and thereby violate Section 8(a)(1) of the NLRA. Section 7 protects the rights of both union and non-union employees to engage in “concerted activities” for their mutual aid and protection, and includes discussions among employees concerning their terms and conditions of employment. This is the latest in a growing number of decisions from the Board expanding the scope of Section 7’s protections for employees in both union and non-union workplaces.
A 2-1 NLRB majority reversed an Administrative Law Judge’s finding that the employer’s maintenance and application of an oral rule prohibiting employees from discussing internal complaints that were under investigation by the hospital did not violate Section 8(a)(1) of the Act. The Board rejected the employer’s argument that the confidentiality rule was justified by its concerns with protecting the “integrity of the investigation.” It found that the employer’s “generalized concern” regarding the need to protect the integrity of its investigation was insufficient to outweigh employees’ Section 7 rights. The Board said a more exacting approach was required: “Rather, in order to minimize the impact on Section 7 rights, it was the [employer’s] burden ‘to first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up.’”
The Board determined that, in applying a “blanket approach” to maintaining confidentiality with respect to an internal investigation, the employer did not meet the requirement of evaluating whether an actual threat to the integrity of the investigation existed to justify the need for such confidentiality. The majority specifically rejected the dissent’s argument that the employer’s prohibition served as a “mere suggestion” to employees not to discuss the internal investigation. According to the majority, viewed in context, the employer’s request “had a reasonable tendency to coerce employees.” (The statement was made by a human resources consultant engaged by the medical center to conduct the investigation.) The Board also reiterated that a rule need not contain a direct or specific threat of discipline to be found a violation of the Act. In reaching its decision, the Board did not analyze guidance from other agencies, such as the Equal Employment Opportunity Commission, that suggest that those involved in investigations should maintain confidentiality to protect the privacy of those involved.
The “Takeaway” From This Ruling for Employers
Supervisors and investigators need to assess the precise need for secrecy and restrictions on employee discussion before demanding, requesting, encouraging or even suggesting that employees keep information confidential during the course of an investigation. This ruling also highlights the Agency’s current disposition to interpret broadly the scope of Section 7’s protections for employees. The Board’s recent focus on employer workplace policies, including, especially, social media policies, show this Board’s purpose to allow employees ever more latitude in “protected concerted activity”, while restricting employers’ ability to manage their workforces and protect their businesses. This ruling in Banner Estrella also reminds employers that unlawful conduct can arise not only from written workplace policies, but also from seemingly reasonable statements made by supervisors and human resource representatives that may be construed as interfering with an employee’s rights.
Employers should review their
personnel policies with counsel to ensure that the policies are compliant with
changing interpretations of the NLRA. A blanket
prohibition on employee discussions of investigations, regardless of
circumstance, must be removed. Investigators must be trained on this issue and
advised that any statements even requesting confidentiality should be made only
after a detailed analysis of the scope of the investigation.
Adair Buckner is an Amarillo attorney with Buckner & Cross, L.L.P. She is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. Her other areas of practice include business law, business disputes, commercial litigation, estate planning, and probate. You can reach Adair at (806)-322-7777 or firstname.lastname@example.org. This material is not intended to be legal advice. The contents are intended for general information purposes only.
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