NLRB Continues Its Assault On Confidential Investigations

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Confidentiality is the hallmark to any meaningful attempt to investigate workplace misconduct.  Not only for the alleged victim of harassment or discrimination, but for the alleged perpetrator too.  Apparently, the National Labor Relations Board does not agree with that time-honored maxim, as it continues its assault on confidentiality in  workplace investigations.

Last year, in Banner Health Systems, the Board found that blanket confidentiality rules in workplace investigations violated an employee’s right to engage in protected, concerted activity.  Instead, an employer seeking to maintain confidentiality in an investigation “must show that it has a legitimate business justification that outweighs employees’ Section 7 rights” by proving that “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.”   This decision, like many others decided since January 2012 is in jeopardy of being overturned if the Supreme Court finds in Noel Canning that the Board is not properly constituted.

Regardless of how Noel Canning turns out, the Board continues to march on.  In NACCO Material Handling Group, Inc., it found that an employer violated the Act by refusing to share information with a union about the employer’s decision to discipline a male employee accused of sexual harassment.  In that case, Edward Hall, a bargaining unit employee, was accused of sexual harassment by a female co-worker, Maria Munioz.  The employer conducted an investigation and pursuant to that investigation, it imposed some form of discipline on Hall.  Hall decided that he did not want to grieve the discipline, he rejected two attempts to involve the union in his disciplinary proceeding, and instead he wanted to “keep the matter private.”  The union that represented Hall, however, wanted information about the discipline imposed on him, despite his desire to have the matter kept quiet.  When the employer refused to provide it, the union brought an unfair labor practice charge before the NLRB – a decision guaranteed to make the matter far from private.

The Board found that the employee’s desire to maintain privacy over the harassment allegations was subordinated to the Union’s need for information.  And why exactly did the Union need this information?  To ensure that “consistent” discipline is imposed on other employees accused of harassment. The Board found that the union’s interests in consistency outweighed the employees’ interests in confidentiality.

Here is the good news for employers: this decision will only apply to employers with a unionized workforce, since the duty to furnish information only applies where a union is the certified bargaining representative for employees.  But for those with organized workforces, the Board appears to be taking the consistent position that employees’ concerns about confidentiality are almost always subordinated to the purpose of the Act, which in its view is of paramount importance.  It leaves employers in the untenable position of having to justify in advance the need for confidentiality and then to yield that confidentiality if a union declares an interest in the investigation.

Of course, it remains to be seen whether NACCO or Banner Health survive the Supreme Court’s review in Noel Canning.  But even if those cases fall, with a newly constituted Board lurking around the corner, we can expect this assault on confidentiality to continue in the years to come.