An employer’s policies – one requiring confidentiality of workplace investigations and another requesting confidentiality – are unlawful under the NLRA, an NLRB Administrative Law Judge has held. The Boeing Company, No. 19–CA–089374 (July 26, 2013). ALJ Jeffrey Wedekind found both Boeing Company’s original policy and a revised policy on workplace investigations violated employees’ statutory right to discuss their terms and conditions of employment and to engage in concerted protected activity.
Boeing’s original policy required employees involved in HR investigations to maintain confidentiality. Employee Joanna Gamble filed a complaint with HR regarding her supervisor and was interviewed about her allegations. Gamble later was disciplined with a warning for discussing the investigation with her coworkers. Boeing asserted that Gamble violated the company’s confidentiality policy, which she signed during the investigation. The policy “directed” witnesses not to discuss the case with any Boeing employee other than the investigators or the witness’s union representative, if applicable. Gamble then filed an unfair labor practice charge, claiming the discipline pursuant to the policy was unlawful under the NLRA because the policy restricted her right to discuss the terms and conditions of employment with other employees.
Shortly after the charge was filed, Boeing rescinded Gamble’s discipline and revised its policy. The new version “recommended” rather than “directed” employee witnesses refrain from discussing the case with other employees, but was still found unlawful
Current NLRB law established in 2012 in Banner Health, 358 NLRB 93, provides that a blanket rule prohibiting employee discussions of ongoing investigations is invalid because it does not take into account the employer’s burden to demonstrate a particularized need for confidentiality in any given situation. Thus, an employer must “determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, and there [was] a need to prevent a cover up.” (For more on this decision, please see Employer's Suggestion to Employees to Avoid Discussing Internal Investigations Violates Labor Law, NLRB Finds.)
Consistent with current Board law, the ALJ held Boeing’s original policy, with its absolute insistence on confidentiality concerning workplace investigations, infringed employees’ statutory right to discuss their terms and conditions of employment and to engage in concerted protected activity. The revised policy fared no better, the ALJ concluded, because the policy, despite being phrased as a request, could be interpreted reasonably by employees as imposing a confidentiality requirement, and nothing in it suggested that the employee would be free to disregard the policy.
Even rescinding the discipline did not spare the company a violation finding. The ALJ concluded the discipline had been unlawful because Boeing had enforced an unlawful rule and failed to adequately repudiate the unlawful warning.
Since Banner Health, the NLRB’s Division of Advice provided the following wording for a lawful investigations rule (for more, see NLRB’s Division of Advice Spells Out Lawful Investigations Rule):
[Employer] has a compelling interest in protecting the integrity of its investigations. In every investigation, [Employer] 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. [Employer] 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 [Employer] 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.
Employers must continue to review their personnel policies with labor counsel to ensure compliance with changing interpretations of the NLRA. A per se prohibition on employee discussions of investigations, regardless of the circumstances will not stand up to NLRB scrutiny.