Investigator's Confidentiality Recommendation is Unlawful Confidentiality Mandate: NLRB | Practical Law

Investigator's Confidentiality Recommendation is Unlawful Confidentiality Mandate: NLRB | Practical Law

In The Boeing Co., the National Labor Relations Board (NLRB) held that Boeing violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by distributing and maintaining an overbroad confidentiality recommendation in notices about human resources investigations given to non-union employees.

Investigator's Confidentiality Recommendation is Unlawful Confidentiality Mandate: NLRB

by Practical Law Labor & Employment
Published on 08 Sep 2015 • USA (National/Federal)
In The Boeing Co., the National Labor Relations Board (NLRB) held that Boeing violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by distributing and maintaining an overbroad confidentiality recommendation in notices about human resources investigations given to non-union employees.
On August 27, 2015, in The Boeing Co., the panel (Board) heading the NLRB's judicial functions held that Boeing violated Section 8(a)(1) of the NLRA by distributing and maintaining an overbroad confidentiality recommendation in notices about human resources investigations, which employees could reasonably construe as infringing on their Section 7 rights (362 N.L.R.B. slip op. 195 (Aug. 27, 2015)).
In November 2012, Boeing distributed a confidentiality notice to its non-union employees participating in human resources investigations, revising a notice that had been used until that point. The revised notice stated in relevant part:
"Human Resources Generalist investigations deal
with sensitive information. Because of the sensitive
nature of such information, we recommend that you
refrain from discussing this case with any Boeing
employee other than company representative[s] investigating
this issue or your union representative, if
applicable. Doing so could impede the investigation
and/or divulge confidential information to other employees.
As a participant in the investigation, the information
you provide will be treated in a sensitive
manner, however the investigator will not promise
absolute confidentiality. Information regarding the
investigation may be disclosed to person(s) on a
need to know basis.
Please contact the investigator if you have any
questions in this matter. If any coworker or manager
asks to discuss the case with you, we recommend
that you inform him or her that Human Resources
has requested that you not discuss the case, and refer
the individual to the Human Resources representative
who is investigating the matter."
In the revised notice, the wording was changed from, "you are directed not to discuss this case" to "we recommend that you refrain from discussing the case" with coworkers. Boeing asked employee witnesses to sign the revised notice, to officially recognize that they were advised of the policy and understood it.
The majority (Chairman Pearce and Member Hirozawa) found that the notice violated Section 8(a)(1), noting that:
  • The Board has held that a determination of a rule's lawfulness is premised on whether the prohibition reasonably tends to coerce or inhibit employees from exercising their fundamental rights protected by Section 7 of the NLRA (Radisson Plaza Minneapolis, 307 N.L.R.B. 94 (1992)).
  • An employer may only prohibit employee discussion of an investigation when the employer's need for confidentiality concerning that specific investigation outweighs employees' Section 7 rights (Caesar's Palace, 336 N.L.R.B. 271, 272 (2001)).
  • Adding the word "recommend" did not significantly change the meaning of the prior version of the notice; using "recommend" is the equivalent of using "request," which the Board has found unlawful (Heck's, Inc., 293 N.L.R.B. 1111, 1119 (1989)).
  • The Board has found similar requests for compliance with employer directives to violate the NLRA because of the directives' reasonable tendency to inhibit protected activity (Radisson Plaza; Heck's, Inc.).
  • They did not consider Boeing's notice to be a mere preference for confidentiality, because:
    • Boeing communicated a clear desire for fulfilment of the confidentiality request;
    • the employees were required to sign the revised notice;
    • Boeing provided no assurance that employees were permitted to decline the confidentiality request; and
    • when an employer requests an employee take action, the employee often does not feel free to disregard the employer's request without fear of potential retaliation.
  • Boeing:
    • did not demonstrate the existence of a legitimate and substantial business justification for the rule in this specific situation (Hyundai Am. Shipping Agency, 357 N.L.R.B. slip op. 80 (Aug. 26, 2011); and
    • universally applied its revised confidentiality notice to all investigations.
In dissent, Member Johnson noted, among other things, that:
  • "Recommend" or "advise" do not have the same meaning as "direct" or "mandate."
  • Employees would not reasonably understand Boeing's revised notice as interfering with their Section 7 rights because:
    • it recommended, but did not demand, confidentiality based on Boeing's interest in protecting the integrity of its investigations; and
    • given the updates made from the prior version, it is clear that Boeing's revised notice showed an expression of preference rather than a mandate.
  • The majority ignored that context in which the recommendation in Boeing's notice arose. It relied on cases (Radisson Plaza and Heck's) in which the employer's "request" was mandatory given the context created by other language in the instructions;
  • Common sense should have prevented the need to explicitly assure employees that they can disregard the revised notice's recommendation (S. New England Tel. Co. v. NLRB, 793 F.3d 93, 93 (D.C. Cir. 2015)).

Practical Implications

The Board's decision in Boeing shows that it will interpret "recommendations" as mandates, if the recommendation could arguably affect the extent to which employees may engage in Section 7 activity. The Board also continues to place the onus on employers to show that they have a legitimate interest in instructing or requesting that employees maintain confidentiality during workplace investigations each time employers make that kind of request. Employers should generally:
  • Avoid a blanket rule about confidentiality during investigations and, instead, determine on a case-by-case basis whether to request confidentiality.
  • Consider outlining in a memorandum or other internal document accompanying each investigation why it is necessary to request that employees not discuss that particular workplace investigation.