As we reported here, in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the NLRB reviewed an employer’s blanket policy of requiring witnesses to maintain confidentiality during workplace investigations.  The Board found that such a policy chilled the right of employees to engage in the protected concerted activity of discussing such workplace concerns. 

The Board further held in Banner Health that, in order to minimize the impact on that right, 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 Board concluded that the employer’s “blanket approach” of “maintaining and applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct” violated Section 8(a)(1) (prohibiting employers from interfering, restraining or coercing employees in the exercise of their rights).  Slip opinion at 2.

Recently, the NLRB’s General Counsel’s Division of Advice released a memorandum which offered additional guidance in this area.  The memorandum was issued following a settlement reached in Verso Paper, Case 30-CA-089350 (January 29, 2013).  There, the employer maintained a Code of Conduct which included the following provision prohibiting employees from discussing ongoing investigations (italics added):

Verso has a compelling interest in protecting the integrity of its investigations.  In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up.  To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence.  If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.  

Based on the Banner Health decision, the Division of Advice in Verso Paper found that the italicized portion of this provision violates Section 8(a)(1), because it did not take into account the employer’s burden to demonstrate in each case that the employer has a business justification for the confidentiality rule that outweighs employees’ rights to discuss such workplace concerns. 

However, the Division of Advice took the extraordinary step of providing what it would consider lawful language to replace the italicized language above.  In footnote 7 of the Advice Memorandum it stated: 

We note that the first two sentences of the Employer’s rule lawfully sets forth the Employee’s interest in protecting the integrity of its investigations.  Consistent with Banner Health, the Employer could modify the remainder of the rule to lawfully advise employees that:

Verso may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence.  If Verso reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

Advice Memorandum at p. 3, n. 7.

The combined language could help bolster an employer’s argument in a given case that a confidentiality instruction was not for the purpose of “chilling” Section 7 activity.  While the language does not by its terms relieve the employer from making the determination required by Banner Health, which is Board law, it lawfully allows an employer to advise its employees in advance that if such a determination is made (i.e., if the employer “reasonably imposes such a requirement” of confidentiality), the employees must abide by it on pain of “disciplinary action up to and including . . . termination.”  It remains to be seen how this will play out in specific cases, but it is clear that the Division of Advice would look favorably on such language.