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Employers must justify instructing employees not to discuss ongoing investigations

August 17, 2012

Article courtesy of SBAM Approved Partner Clark Hill PLC
By: Thomas P. Brady
In Banner Health System, 358 NLRB No. 93 (NLRB, 2012), the National Labor Relations Board (Board) continued its expansive reading of Section 7 rights by finding that the employer violated an employee’s Section 7 rights by maintaining a policy instructing employees not to discuss ongoing investigations.
Section 7 of the National Labor Relations Act protects an employee’s “right to self-organization, to 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.”  In the past year, the Board’s General Counsel has opined that employers violate Section 7 by having overbroad policies restricting employees’ use of social media and when disciplining employees for posting on social media sites.  In addition, a Board administrative law judge recently ruled that an at will employment policy contained in the employee handbook violated Section 7 because it led employees to believe that the at will nature of their employment could never change.
In Banner, the employee worked as a sterile technician in Banner’s surgical department.  He was not represented by a union.  The employee was instructed to use hot water from a coffee maker to sterilize surgical tools when the steam machine used for the procedure broke.  He expressed concerns to his supervisor and other employees about the instructions and refused to follow his supervisor’s instructions.  As part of the investigation into his refusal to follow instructions, he met with a human resource representative.  During the meeting the human resource representative asked the employee not to discuss the matter with his coworkers while the investigation was ongoing.  These instructions were regularly given during investigations and were contained on an interview work sheet.  The investigation resulted in the employee receiving a coaching document.  He filed a complaint with the Board.  The Administrative Law Judge found that the policy instructing employees not to discuss investigations with other employees did not violate the Act.
On appeal, the Board found that the policy did violate the employee’s Section 7 rights.  The Board indicated that an employer must have a legitimate business justification to prohibit employees from discussing ongoing investigations.  The Board held that before prohibiting employees from discussing investigations, the employer must first determine if:

  • “any given investigation witnesses need protection;
  • evidence was in danger of being destroyed;
  • testimony was in danger of being fabricated; or
  • there was a need to prevent a cover up.”

The Board found that the employer’s blanket approach failed to meet any of these requirements.  As a result, the Board ordered the employer to post a notice in all its facilities advising the workforce of its violation, and their legal rights under the National Labor Relations Act.
Banner illustrates the pitfalls of a blanket policy instructing employees not to discuss ongoing investigations.  The case stands for the proposition that before instructing employees not to discuss an ongoing investigation, the employer should determine if one of the four justifications outlined in Banner applies.  According to the decision, if one or more do apply, the employer may instruct the employee not to discuss the investigation.  However, if one of the four justifications do not apply, and the employer cannot articulate another justification, employees should not be instructed to refrain from discussing the investigation.  The holding applies to both union and non-union facilities.

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