More "guidance" from the NLRB: During an investigation, don't routinely ask employees to keep matters confidential

Iowa Employment & Labor Law Dickinson Law Firm Des Moines Iowa

Posted on 08/10/2012 at 01:37 PM by The Newsroom

In light of a recent ruling from the NLRB, Iowa employers should be cautious when instructing employees not to discuss matters under investigation. The NLRB requires employers to have a compelling reason for confidentiality. Specifically, employers should avoid blanket policies against discussing investigations and instead consider each investigation on a case-by-case basis and evaluate whether any witness needs protection, evidence is in danger of being destroyed, testimony could be fabricated, or there is a need to prevent a cover-up. The ruling also reinforces the notion that Iowa employers need to review any general 'confidentiality' policies or agreements that they may have in place. On July 30, 2012, the NLRB issued a 2-1 decision finding that an employer's policy prohibiting employees from discussing ongoing investigations violated the National Labor Relations Act, because it had a reasonable tendency to coerce employees from engaging in concerted activity. The policy or practice thus constituted an unlawful restraint of employees' Section 7 rights, in violation of Section 8(a)(1) of the Act. Banner Health Sys. d/b/a Banner Estrella Med. Ctr., 358 NLRB No. 93 (July 30, 2012) . Banner technician James Navarro did not agree with the manner in which he was instructed to clean surgical instruments when normal procedures could not be followed due to a broken steam pipe. He felt the procedures were not proper and could endanger patients. He therefore refused to clean the instruments as directed and expressed concerns to supervisors and coworkers about the instructions. He spoke to an HR consultant, who asked Navarro not to discuss the matter with his coworkers while the investigation into his complaint was ongoing. Navarro was ultimately given a 'coaching' for failing to follow his supervisor's directions (i.e., for failing to clean the surgical instruments using the alternative method). He also was given an annual performance review a few days after the incident which contained negative comments in the 'behaviors' category. He objected to the evaluation, and it was revised favorably. He filed an unfair labor practice charge regarding the 'coaching' and evaluation. The 'coaching' was removed from his personnel file after the unfair labor practice charge was filed, but before the ALJ hearing occurred. The ALJ found, and the NLRB affirmed, there was not sufficient evidence to conclude that Navarro was disciplined for any concerted activity, rather than the employer's stated reason of insubordination. The ALJ also found, and the NLRB affirmed, no violation in Banner's evaluation. Rather, it was concluded the employer had established that the evaluation was based on coworker complaints received before Navarro was directed to clean the instruments using the alternative method. Although not originally part of the charge, the General Counsel amended the complaint during the hearing to allege that Banner's confidentiality agreement and 'interview of complainant' forms on their face violated Section 8(a)(1). The ALJ found the confidentiality agreement, which all employees must sign upon hire, restricted employees' Section 7 activity. The agreement required employees to keep confidential 'Private employee information (such as salaries, disciplinary action, etc.) that is not shared by the employee.' It also informed employees that if they failed to keep such information confidential, they could be subject to corrective action, including termination. The ALJ found the agreement violated Section 8(a)(1) on its face. The NLRB affirmed without comment. With respect to the 'interview of complainant' forms, the HR consultant testified that the form was not given to employees. Rather, during interviews of employees, the HR consultant routinely asked employees not to discuss the matter with their coworkers while the investigation was pending. The ALJ ruled that the policy's 'purpose of protecting the integrity of the investigation' was legitimate and lawful. The Board disagreed and reversed the ALJ's decision, concluding that for an employer to justify a prohibition on employee discussions of ongoing investigations, it 'must show that it has a legitimate business justification that outweighs employees' Section 7 rights.' The NLRB majority then held that Banner's general concerns with protecting the integrity of its investigation did not outweigh employees' Section 7 rights, explaining that to minimize impact on Section 7 rights, an employer must first 'determine whether in any given investigation witnesses needed 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 NLRB concluded that Banner's blanket approach failed to meet those requirements and that the HR consultant's instruction not to discuss the investigation had a reasonable tendency to coerce employees. Member Hayes dissented from the Board majority's opinion, taking the position that the employer did not promulgate a rule but 'merely suggested that employees not discuss matters under investigation' and also noted that there was no threatened discipline for discussing the investigation with others and no actual work rule 'with binding effect' prohibiting such discussions. The majority responded that the NLRA 'does not require that a rule contain a direct or specific threat to be found unlawful.' As noted, the original complaint dealt with the 'corrective action' and performance evaluation, and it was only during the hearing that the General Counsel amended to include the confidentiality statement and 'interview of complainant form.' This demonstrates the NLRB's current trend to carefully scrutinize even non-union employers' policies and strike down those that it deems as interfering with employees' right to engage in concerted activity.  

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