The National Labor Relations Board has held that a company policy – asking employees who lodge an internal complaint not to discuss the matter with co-workers while the matter is investigated – violates the National Labor Relations Act (NLRA).
The case arose after James Nvarro, a sterile technician employee of Banner Estrella Medical Center (Banner) complained that his manager had instructed him to sterilize hospital instruments in a manner that Nvarro believed to be undocumented and that made him uncomfortable. When meeting with Nvarro, Banner’s human resources consultant requested that Nvarro not discuss the matter with co-workers while the investigation was ongoing. The consultant made the request in accordance with the company’s internal, written procedures for handling employee interviews.
The administrative law judge found that the request was a permissible “suggestion…for the purpose of protecting the integrity of the investigation” so that employees give their own versions of the facts rather than what they may have heard from someone else. The judge found that Banner had a legitimate business reason for making the suggestion and that it did not violate the NLRA.
The Board disagreed and overturned the judge’s decision on this issue. The Board found that Banner’s business interest – a “generalized concern with protecting the integrity of its investigations” – was insufficient to outweigh employees’ rights under Section 7 of the NLRA. Section 7 protects the rights of employees (both union and nonunion) to engage in “concerted activities.” This includes the right to discuss wages, hours, and terms and conditions of employment. In order to minimize the impact on Section 7 rights, the Board said, the employer must make a case-by-case determination as to whether any witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover-up. Banner’s blanket approach failed to meet those requirements.
In light of the Board’s decision, AGC members should review company policies and procedures for potentially overbroad language concerning confidentiality. Any per se rules prohibiting employees from discussing internal investigations of employee complaints or misconduct (or from discussing wages, hours, or other terms and conditions of employment) should be revised. Tailor any potentially overbroad language, consulting with outside counsel as needed. Also, be sure to train all staff who conduct investigations on this issue.
Banner Health System, 358 NLRB No. 93 (7/30/12).