NLRB Continues to Throw Up Roadblocks for Internal Investigations

by McNees Wallace & Nurick LLC
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As we previously reported, the National Labor Relations Board has thrown down some pretty significant roadblocks for employers attempting to conduct thorough and actionable internal investigations. The Board continued those efforts recently when it declared that an employer's request that a union-covered employee sign his own witness statement at the conclusion of an interview was unlawful.

In Murtis Taylor Human Services Sys., the Board first held that a union representative was within his rights when he advised an employee not to answer questions posed during an investigatory interview. The Board's hair splitting on this issue was evident, at various points in the decision the Board states:

  • The union rep advised the employee not to answer certain questions until the employer clarified the nature of the alleged policy violation.
  • At no time during the interview did the union rep attempt to prevent the employee from answering questions.
  • Although the union rep advised the employee to refrain from answering...

We are not sure how the Board reconciled these seemingly contradictory conclusions. But without a doubt, this decision will lead to more aggressive interference from union reps during investigatory interviews, which in turn will lead to poorer overall investigative results. Ironically, that will very likely be a negative outcome for both employers and employees.

In addition, the Board found that the employer violated the Act by directing an employee to review the notes taken during his interview, make any changes that were necessary and then sign the document. The employee was even told to take the statement to his attorney for review, but he would still need to sign it. The Board held that by unilaterally implementing the signature requirement without bargaining with the union, the employer violated the National Labor Relations Act.

The employer attempted to argue that the management rights clause in its contract with the union allowed it to implement reasonable rules and regulations such as the signature requirement. However, the Board quickly dispensed of that argument finding that the contract clause was not specific enough. As it stands, an employer without a prior practice of requiring employees to sign witness statements must bargain with the union prior to implementing such a requirement.

The principles set forth in this decision are specific to unionized workforces, for now. The decision in Murtis Taylor further erodes unionized employers' ability to conduct thorough and accurate internal investigations. Employers will likely face significant interference from union representatives during investigatory interviews, which will very likely impede the fact gathering process. In addition, employers may be unable to secure an employee's signature on a witness statement, which may lead to more employees changing their stories during the investigation process. Unfortunately, employers' ability to police the workforce continues to be impaired by decisions of the Board.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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