Employer Violated NLRA by Asking Employees Not to Discuss Ongoing Investigations with Co-workers: NLRB | Practical Law

Employer Violated NLRA by Asking Employees Not to Discuss Ongoing Investigations with Co-workers: NLRB | Practical Law

In Banner Estrella Medical Center, the National Labor Relations Board (NLRB) held that an employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by asking employees who make complaints not to discuss ongoing investigations with co-workers.    

Employer Violated NLRA by Asking Employees Not to Discuss Ongoing Investigations with Co-workers: NLRB

by PLC Labor & Employment
Published on 31 Jul 2012 • USA (National/Federal)
In Banner Estrella Medical Center, the National Labor Relations Board (NLRB) held that an employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by asking employees who make complaints not to discuss ongoing investigations with co-workers.
On July 30, 2012, the NLRB issued a decision in Banner Estrella Medical Center, holding, among other things, that the employer violated Section 8(a)(1) of the NLRA by asking an employee not to discuss an ongoing investigation of misconduct with co-workers.
The employee in Banner Estrella Medical Center is a sterile technician for a hospital. On one of the employee's work days in 2011, when the hospital's supply of hot water was lacking, he was told to follow a different protocol for sterilizing the equipment, which involved using hot water from a coffee machine to start the sterilization process. The employee expressed his concerns about these cleaning methods to his supervisors, because of his fear that patient safety would be endangered. The employee refused to sterilize the instruments.
Several days later, the employee discussed the matter with a human resources consultant and expressed concern for his job. The consultant told him that she would investigate and asked him not to discuss the investigation with co-workers while the investigation was underway. Later that day, following an investigation involving supervisors and the human resources consultant, the employee's supervisor issued a written reprimand (a "coaching") to the employee (which was later removed from his personnel record).
Several days after receiving the reprimand, the employee received a performance review indicating that he was a difficult person to work with.
An NLRB administrative law judge (ALJ) held that the employer did not violate Section 8(a)(1) of the NLRA when it requested the employee to avoid discussing the hot water incident with other employees while the investigation was underway. The ALJ found that the employer sought to protect the integrity of the investigation, which was a legitimate business reason for requesting confidentiality.
By a 2-1 majority, the Board reversed the ALJ's holding. The majority found that the employer failed to show a legitimate business justification that outweighed employees' rights under Section 7 of the NLRA. The Board majority found that the employer failed to meet its burden by showing that, in the course of the investigation:
  • Witnesses would need protection.
  • Evidence would be in danger of destruction.
  • Testimony would be in danger of fabrication.
  • There would be a need to prevent a cover-up.
Therefore, a blanket request of confidentiality during investigations does not meet the requirements of the NLRA. In Banner Estrella, not only did the human resources consultant ask the employee to keep the investigation confidential, but the employer required all employees to sign a confidentiality agreement, which stated that employees who discuss private employee information, including disciplinary actions, may be subject to discipline.
The Board majority rejected the arguments raised in the dissenting opinion. It found that:
  • The employer's confidentiality request was not a mere suggestion that employees avoid discussing the investigation, because it frequently requests confidentiality from employees, which has a reasonable tendency to violate the NLRA by coercing employees.
  • An employer's rule need not contain direct or implicit threats or reprisal to be unlawful. The employer's request was unlawful even though the human resources consultant did not indicate that the employee would be disciplined for breaking confidentiality.
The Board affirmed the ALJ's decision dismissing other charges that:
  • The employer unlawfully issued the coaching document to the employee. The employer had no knowledge of any concerted activity when it disciplined him for insubordination.
  • The employee's performance review, which included some negative comments on his behavior, was completed before the employee engaged in any protected activity.
Board documents: