NLRB Places Confidentiality of Investigations at Risk

September 06, 2012

Filed under: Case Summaries, National Labor Relations Act (NLRA), National Labor Relations Board (NLRB), Unions / Tags: human resources

In a 2-1 decision, the National Labor Relations Board in the case of Banner Health System v. James Navarro, ruled that an employer violated the National Labor Relations Act by asking the employee not to discuss the details of his complaint with other employees while it was under investigation. The NLRB ruled that the company’s generalized concern with protecting the integrity of its investigation was insufficient to outweigh the employee’s Section 7 rights, which allows the employee to engage in concerted activities for their mutual aid and protection. The Board did indicate that there were circumstances where a request for confidentiality may be legitimate, including:

Where witnesses may need protection
Where evidence is in danger of being destroyed
Where testimony is in danger of being fabricated
Where the is a need to prevent a cover-up

It made no difference to the court whether or not the “rule” was merely a suggestion or whether it had the potential of discipline attached to it. Simply requesting the confidentiality was enough to violate the Act.

As one of its penalties, the company was required to post the following notice:

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO:

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities

WE WILL NOT maintain or apply the provision in our confidentiality agreement that contains the following language “Private employee information (such as salaries, disciplinary action, etc.) that is not shared by the employee.”

WE WILL NOT maintain or apply a rule prohibiting employees from discussing ongoing investigations of employee misconduct.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights set forth above.

BANNER HEALTH SYSTEM D/B/A BANNER ESTRELLA MEDICAL CENTER

Note: The Board also reminded employers that companies cannot restrict information such as salaries, disciplinary action, etc. without also violating Section 7. Employers are also advised to document and analyze why it may need to request confidentiality in any investigation. Finally, there is a possibility that this determination by the NLRB can be reversed by one of the circuit courts, or if things change after the November election.

Banner Health System d/b/a Banner Estrella Medical Center (28‑CA‑023438, 358 NLRB No. 93) Phoenix, AR, July 30, 2012.