This past week, I read the NLRB’s recent Order in Banner Health Systems, and, strangely enough, Elmer J. Fudd came to mind. Yes, the Looney Tunes character – the archenemy of Bugs Bunny. As he attempted to hunt-down Bugs, Elmer Fudd would say, “Shhh. Be vewy, vewy, quiet. I’m hunting wabbits.”
For those of you who don’t remember Elmer J. Fudd, click here.
What’s the connection between Banner Health Systems and Elmer J. Fudd? In its seemingly never-ending attempt to disrupt business operations in the name of protecting employees’ Section 7 rights under the National Labor Relations Act, the NLRB told Banner Health Systems that it could no longer direct employees to “be vewy, vewy quiet” and maintain confidentiality during internal workplace investigations.
During witness interviews, Human Resources representatives at Banner Health told employees that the investigation was confidential and requested employees not to discuss the interview with co-workers because “when people are talking, it is difficult to do a fair investigation.”
The issue before the Board was whether Human Resources’ request violated employees’ Section 7 right to discuss with co-workers issues that impacted employees’ terms and conditions of employment – issues such as discipline possibly arising out of the internal investigation. Simply put, can an employer tell a witness during an internal investigation, “keep your mouth shut and don’t tell any of your co-workers about what we just discussed”?
In a 2-1 decision, the Board reaffirmed prior precedent and struck down Banner Health’s confidentiality policy.
The Board’s rule is not absolute. An employer may tell employees to “be vewy, vewy quiet” if the employer can show that a legitimate and substantial business justification outweighs employees’ Section 7 rights. In Banner Health, the Board explained that legitimate reasons may exist where, based upon an individualized, case-by-case review, it is determined that confidentiality is necessary to:
- protect witnesses;
- prevent the destruction of evidence;
- prevent the fabrication of testimony; or
- prevent a cover-up.
The Board has placed a fairly high burden on employers. A generalized concern about maintaining the integrity of an investigation will not suffice. “Only if the employer determines that such a corruption of its investigation would likely occur without confidentiality is the employer then free to prohibit its employees from discussing these matters among themselves.”
The Banner Health rule is not new, but the decision serves as a very good reminder for employers, including non-unionized employers, that confidentiality may not be required during all internal investigations. Proceed cautiously and make a case-by-case assessment, keeping in mind the fairly high burden imposed by the Board.
As Bugs would say, “that’s all folks!”