The National Labor Relations Board has issued yet another decision that is likely to have a wide impact on employers. The common employer practice of requesting that employees refrain from discussing ongoing workplace investigations violates the National Labor Relations Act, according to a recent NLRB decision. The decision applies to all employers, unionized or not.
The case, Banner Health System d/b/a Banner Estrella Medical Center and James A. Navarro, Case 28-CA-023438 (July 30, 2012), involved a claim by James Navarro, a sterile technician employed at the hospital operated by Banner Health. Navarro was responsible for the sterilization of tools and equipment used during surgeries. When he reported to work one day and learned that a broken steampipe would prohibit him from cleaning the surgical equipment in accordance with normal procedures, he addressed his concerns with supervisors. He was ordered to use other methods of sterilization, including a lower temperature sterilizer and the use of hot water from the coffee machine in the break room. Navarro refused to use these alternative methods due to his belief that they were not established protocols, and he discussed his concerns with coworkers. His supervisor informed a human resources consultant of the insubordination, and Navarro was issued a coaching. Around the same time, he was given his annual performance evaluation, which included some negative behavioral reviews based on complaints made against Navarro by other employees. During the course of investigating those employee complaints, the human resources consultant requested that Navarro not discuss the matter with his coworkers while the investigation was ongoing. In addition to that request, all of Banner Health’s employees were subject to a routine confidentiality agreement that provided for discipline for a breach of confidentiality.
The NLRB found that, although the issuance of the coaching did not run afoul of the Act, both the request for confidentiality pending the investigation and the standard confidentiality agreement violated the Act. Specifically, the Board found that Banner Health’s concerns with protecting the integrity of its investigations did not outweigh the employees’ Section 7 rights to engage in concerted activities for their mutual aid and protection. The Board suggested that its concern with this blanket approach to confidentiality was that it did not look at the individualized circumstances of the particular investigation. Instead, an employer should evaluate the following factors in each and every investigation:
(1) whether the witnesses need protection
(2) whether evidence is in danger of being destroyed
(3) whether testimony is in danger of being fabricated
(4) whether there is a need to prevent a cover up
The Board found that the human resources consultant’s request was an “actual rule,” even though it was only a request and not an order. The Board left open the possibility that a “mere suggestion” to maintain confidentiality would pass muster, but provided no guidance to employers as to what a “mere suggestion,” as opposed to an “actual rule,” would look like.
In light of Banner Health, employers should review their policies for blanket confidentiality requirements and make appropriate modifications. The individualized circumstances of each investigation must be assessed to determine whether a confidentiality request or order should be communicated. The tensions this decision creates between adherence to the NLRA, on the one hand, and the maintenance of employee privacy and investigatory integrity, on the other hand, are not easily reconciled.
If you have questions about how this decision impacts your workplace and your internal policies, please contact one of your Hinckley Allen Labor & Employment Group attorneys.
©2012 Hinckley Allen. This publication is not intended to be legal advice, but is intended only to inform the reader of recent developments in the law. The enclosed materials are provided for educational and informational purposes only, for the use of clients and others who are interested in the subject matter. If legal advice is required concerning a particular matter, your attorney should be consulted.