Confidentiality Directives May Violate The NLRA

POSTED BY SCOTT T. SILVERMAN ON AUGUST 9, 2012

In keeping with its current interest in examination of standard practices of non-union employers, the National Labor Relations Board ("Board") has now held that the common directive to employees to not discuss matters under investigation with co-workers may interfere with, restrain or coerce employees in the exercise of their statutory rights under Section 7 of the National Labor Relations Act ("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. 

On July 30, 2012,  in Banner Health System d/b/a Banner Estrella Medical Center and James Navarro, Case No. 28-CA-023438 (2012), the Board held that it was unlawful to maintain a blanket policy forbidding employees who make a workplace complaint from discussing the matter with co-workers during the employer’s investigation. In Banner, the employee made an internal complaint regarding a direction that he received to alter his normal duties when his equipment malfunctioned. The employee refused to follow his supervisor’s instructions, on the basis of health and safety concerns, and thereafter received a “coaching” for insubordination.

In connection with the "coaching," the employee met with the employer’s human relations consultant. During the interview, the employee was requested to not discuss the matter with co-workers while the investigation was ongoing. The Board noted that the representative used an "Interview of Complainant Form” that contained the confidentiality instruction for all interviews. 

In a 2-1 decision, the Board held that a “blanket” rule of providing confidentiality directives in connection with internal complaint interviews violates employees’ rights to engage in protected concerted activity under Section 7 of the NLRA. The Board determined that the employer’s “generalized concern with protecting the integrity of its investigation” was too broad to satisfy a legitimate business interest that would outweigh employees’ Section 7 rights. The Board rejected the argument that the consultant's request was a “mere suggestion” to not  discuss the internal investigation, because it “had a reasonable tendency to coerce employees,” and a rule need not contain a direct or specific threat of discipline to be found a violation of the NLRA.  

An employer's policy must be more narrowly tailored to prohibit employee discussion about an ongoing investigation.  An employer may do so only if it has a specific legitimate business justification for confidentiality tied to the individual investigation. This must be determined on a case-by-case basis, which might include, but is not limited to: witness protection; evidence is in danger of being destroyed, testimony is in danger of being fabricated, or a cover-up needs to be prevented.

In light of the Board's decision, employers should review their internal complaint procedures to ensure confidentiality directives are provided only as necessary on a specific, individual basis.  In a broader context, however, this is the latest example of the Board's invalidation of non-union employer policies under Section 7 of the NLRA, including social media, "at-will" employment disclaimers and arbitration. The Board has even launched a webpage advising employees of their Section 7 rights.   Employers can therefore expect to see a rise in unfair labor practice charges and are advised to examine all of their current procedures to assure compliance with the NLRA.

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