HR Rep Unlawfully Requested That Employees Keep Workplace Investigation Confidential: NLRB | Practical Law

HR Rep Unlawfully Requested That Employees Keep Workplace Investigation Confidential: NLRB | Practical Law

In Banner Health System, the National Labor Relations Board (NLRB) held that a human resources consultant unlawfully requested that employees not discuss workplace investigations with their co-workers. The NLRB found that the employees' Section 7 rights outweighed the employer's interest in restricting discussion among employees about the investigations. The NLRB's decision adopted much of the reasoning and conclusions on this issue from an earlier NLRB decision that was initially set aside following the US Supreme Court's decision in Noel Canning.

HR Rep Unlawfully Requested That Employees Keep Workplace Investigation Confidential: NLRB

by Practical Law Labor & Employment
Law stated as of 27 Mar 2017 • USA (National/Federal)
In Banner Health System, the National Labor Relations Board (NLRB) held that a human resources consultant unlawfully requested that employees not discuss workplace investigations with their co-workers. The NLRB found that the employees' Section 7 rights outweighed the employer's interest in restricting discussion among employees about the investigations. The NLRB's decision adopted much of the reasoning and conclusions on this issue from an earlier NLRB decision that was initially set aside following the US Supreme Court's decision in Noel Canning.
On June 26, 2015, in Banner Health System, a majority of the panel (Board) heading the NLRB's judicial functions held that a human resources consultant unlawfully requested that employees not discuss workplace investigations with their co-workers. The NLRB found that the employees' Section 7 rights outweighed the employer's interest in restricting discussions among employees about the investigations. (362 N.L.R.B. slip. op. 137 (Jun. 26, 2015).)
The Board adopted much of the reasoning and conclusions of an earlier invalid Board panel decision (358 N.L.R.B. slip op. 93 (Jul. 30, 2012)). See Legal Update, Employer Violated NLRA by Asking Employees Not to Discuss Ongoing Investigations with Co-workers: NLRB. This earlier decision was vacated by the US Court of Appeals for the District of Columbia Circuit because the Board was then composed of two persons whose appointments the Supreme Court held constitutionally infirm in Noel Canning (134 S. Ct. 2550 (2014)). For more information on Noel Canning, see Article, Expert Q&A on Noel Canning and Its Aftermath and Legal Update, Supreme Court Holds 2012 Recess Appointments to the NLRB Were Invalid, Effectively Invalidates 20-Months of NLRB Decisions.

Background

In 2011, an employee who worked as a sterile technician at Banner Estrella Medical Center (Banner) expressed to his supervisors concerns about certain cleaning methods that Banner was requiring him to use. The employee believed that the cleaning methods would endanger patient safety. The employee refused to sterilize instruments using the required methods. Several days later, the employee discussed the matter with a human resources consultant and expressed concern for his job. The consultant told him that she would investigate and asked him not to discuss the investigation with co-workers while the investigation was underway. The consultant based her confidentiality instruction on an internal memorandum from Banner that provided guidance on conducting employee interviews and provided for the consultant to make the following statement to employees during investigatory interviews:
"This is a confidential interview and I will keep our discussion confidential except as required by law, or Banner policy, or as necessary to conduct this investigation. I ask you not to discuss this with your coworkers while this investigation is going on, for this reason, when people are talking it is difficult to do a fair investigation and separate facts from rumors."
Following an investigation, the employee's supervisor issued a written reprimand to the employee (which was later removed from his personnel record). Several days after receiving the reprimand, the employee received a performance review indicating that he was difficult to work with.
An NLRB administrative law judge (ALJ) held that the employer did not violate Section 8(a)(1) of the NLRA when it requested that the employee not discuss the sterilization incident with other employees while the investigation was underway. The ALJ found that the employer sought to protect the integrity of the investigation, which was a legitimate business reason for requesting confidentiality.

Outcome

In a 2-1 decision (Member Miscimarra dissented), the Board majority held that the human resources consultant unlawfully requested that Banner's employees not discuss pending workplace investigations with their co-workers, determining that employees' Section 7 rights outweighed Banner's interest in maintaining the integrity of its investigation.
The Board majority noted that:
  • Employees have a Section 7 right to discuss pending workplace disciplinary investigations involving themselves or other employees (Fresh & Easy Neighborhood Market, 361 N.L.R.B. slip op. 12 (2014)).
  • Employers may only restrict discussions among employees about workplace investigations if the employer can show that it has a substantial or legitimate business justification that outweighs employees' Section 7 rights (Hyundai America Shipping Agency, 357 N.L.R.B. slip op. 80 (2011)).
  • For an employer to prove a substantial or legitimate business justification outweighing employees' Section 7 rights, it must show that any confidentiality requirement the employer imposed on employees discussing workplace investigations was:
    • only applied on a case-by-case basis, and not in all cases or always in particular types of cases; and
    • based on objectively reasonable grounds that the investigation would be compromised or jeopardized without the confidentiality requirement.
(Hyundai America Shipping Agency, 357 N.L.R.B. slip op. 80 (2011).)
The Board majority found that:
  • The standard applied by the Board in Hyundai should be reaffirmed in this case because it:
    • was applied in a series of prior Board cases involving similar instructions given during workplace investigations (Ceasar's Palace, 336 N.L.R.B. 271 (2001); Phoenix Transit Systems, 337 N.L.R.B. 510 (2002));
    • fairly balances the competing interests between employees' Section 7 rights to discuss discipline that may be imposed on them or one of their co-workers and employers' need to maintain integrity in workplace investigations; and
    • is broad enough to permit the Board to consider all relevant circumstances in each particular case, including cases that involve serious threats to the integrity of an investigation beyond protecting witnesses, preserving evidence or preventing false testimony or cover-ups of misconduct.
  • Although Banner had a legitimate interest in requesting confidentiality from employees for certain types of investigations, Banner's generalized request in all investigations did not sufficiently outweigh employees' Section 7 rights.
  • Banner had failed to meet the Board's requirement in Hyundai that it have an objectively reasonable basis for requesting confidentiality like protecting witnesses, preserving evidence or preventing false testimony or cover-ups of misconduct.
The Board majority took issue with Member Miscimarra's dissent, noting that:
  • The dissent's interpretation of the case record itself was flawed because the human resources consultant's requests for confidentiality were:
    • routine, categorical and frequent;
    • made in various types of investigations; and
    • not based on the consultant making individualized determinations about when to request confidentiality.
  • It was irrelevant that the human resources consultant:
    • requested, but did not require, that employees not discuss the investigation;
    • requested confidentiality only while the investigation was ongoing; and
    • did not expressly threaten employees with disciplinary action if they failed to maintain confidentiality.
In addition, the Board unanimously affirmed the ALJ's findings that Banner did not violate Section 8(a)(1) of the NLRA when it:
  • Issued a coaching instruction to the technician for failing to follow instructions.
  • Gave the technician a negative performance review.
Member Miscimarra's lengthy dissent noted that:
  • Banner made a narrowly tailored request for employees not to discuss the content of an investigative meeting while the investigation was ongoing.
  • The majority was effectively finding that any request for confidentiality during an investigation (including requests that were not accompanied by a threat of discipline) violate the NLRA.
  • Employers have a legitimate interest in requesting confidentiality to maintain the integrity of workplace investigations. In most investigations that interest does not give rise to protected activity under the NLRA.
  • Any balancing of employer interests against employee Section 7 rights should be done by the Board, not by employers.

Practical Implications

The Board's decision in Banner Health System places the onus on employers to show that they have a legitimate interest in instructing or requesting that employees maintain confidentiality during workplace investigations. Employers should:
  • Avoid a blanket rule about confidentiality during investigations but should instead determine on a case-by-case basis whether to request confidentiality.
  • Outline in a memorandum or other internal document accompanying each investigation why it is necessary to request that employees not discuss that particular workplace investigation.
UPDATE: On appeal, the US Court of Appeals for the District of Columbia Circuit held that the Board reasonably invalidated the confidentiality agreement based upon substantial evidence. Therefore, the DC Circuit granted the application for enforcement on that issue. However, there was no substantial evidence that the employer had a blanket rule requiring confidentiality in every investigative situation, so the court granted the petition for review, and denied enforcement on that issue. (Banner Health Sys. v. NLRB, (D.C. Cir. Mar. 24, 2017).)