Section 7 of the NLRA provides:
“Employees shall have the right to self-organize, form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Violations of Section 7 will be found where policies stifle or prevent employees from engaging in “concerted activity” for “mutual aid or protection”. Violations will result in a filing of an Unfair Labor Practice Charge.
Certain Activities are Expressly Protected:
- Discussing wages and benefits
- Comments about other terms and conditions of work
Employers must become aware of the NLRB’s position to avoid claims of unfair labor practices.
A. Confidentiality of Investigations Cannot be Held Confidential
Recently, the NLRB found unlawful the very common practice of instructing employee-witnesses to an investigation to maintain the confidentiality of the investigation and not discuss the matter with others until after the investigation is completed. (Banner Health System)
The NLRB (Board)held that the employer’s standard instruction not to discuss the ongoing investigation with co-workers violated employee rights to engage in protected concerted activity under Section 7 of the National Labor Relations Act. The Board held that such an instruction, even if not coupled with an explicit threat of disciplinary consequences, is an unlawful restraint of employees’ Section 7 rights.
The underlying investigation in this case involved an employee’s claim that his negative performance evaluation was the result of retaliation by his supervisor over a prior dispute submitted by the employee. The human resources manager investigating the claim utilized an Interview of Complainant form to guide the discussion and to take notes. At the top of the form, in the introductory remarks, the following instruction appeared requiring the employee’s signature:
“This is a confidential interview and I will keep our discussion confidential except as required by law, or (Company) policy or as necessary to conduct this investigation. I ask you not to discuss this with your co-workers while the investigation is going on, for this reason, when people are talking it is difficult to do a fair investigation and separate facts from rumors.
In its decision, the Board explained that a prohibition on employee discussions of ongoing investigations may be justified by showing a legitimate business justification that outweighs employees’ Section 7 rights. However, in the context of this case at least, the Board ruled that the “blanket” instruction not to discuss the investigation “viewed in context, had a reasonable tendency to coerce employees, and so constituted an unlawful restraint of Section 7 rights.”
The Board rejected the employers’ rationale of wishing to maintain the integrity of its investigation. Board stated that an employer must weigh and ultimately justify the instruction with considerations such as:
- whether any given investigation witness needs protection;
- whether evidence is in danger of being destroyed;
- whether testimony is in danger of being fabricated; or,
- whether there is a need to prevent a cover-up
What This Decision Means:
It is clear that instructions regarding confidentiality are intended to ensure the integrity of investigations. And employers investigating claims of misconduct, especially those involving alleged harassment, discrimination, retaliation, or other potentially illegal activity, need to be able to conduct professional, unbiased investigations to determine whether a violation occurred and to take prompt, corrective action.
The integrity of such an investigation can be destroyed if employees communicate with each other and intentionally or unintentionally interfere with witnesses testimony or, worse yet, threaten employees if they cooperate.
The Board’s decision does not preclude confidentiality instructions in all cases. When a non-supervisory employee is interviewed, however, employers should consider both the nature of the investigation and the identity of the witness, and determine the appropriate amount of emphasis to place upon confidentiality warnings.
Employers should take into consideration the following:
- Severity of the conduct being investigated: The more serious the underlying conduct — especially allegations of workplace violence or sexual or racial harassment — the more likely that a confidentiality instruction would be acceptable.
- Role of the Witness in the Interview Process: If the employee interviewee is an eye-witness, and is neither the complainant nor the victim, then asking such an employee not to discuss the investigation before others can be interviewed would likely be acceptable.
- Risk of Retaliation: Evaluating the potential for retaliation against a reporting victim employee must be a critical concern for employers. So the more potential for retaliation the more likely the instruction would be acceptable.
- Narrow Instructions: The more specific the instruction the better. For example, an instruction not to discuss the substance of the claims, or try to influence, tamper with, or otherwise attempt to shape or influence the testimony of any other witness the more likely the instruction would be accepted.