The National Labor Relations Board (the “NLRB” or the “Board”) has ruled, in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB 93 (July 30, 2012), that an employer may violate the National Labor Relations Act (the “NLRA”) when it enforces a general prohibition on employee discussion of ongoing investigations of employee misconduct. Specifically, the Board found that a human resources consultant’s practice of asking employees not to discuss matters under internal investigation with their coworkers constitutes an unlawful restraint of the rights employees have under Section 7 of the NLRA to engage in “concerted activities” for mutual aid or protection and therefore violates Section 8(a)(1) of the NLRA.

The Decision -

In Banner Health System, the Board addressed an Arizona hospital’s practice of routinely asking employees making an internal complaint not to discuss the matter with their coworkers while the hospital’s investigation was ongoing. Although an Administrative Law Judge found that the hospital’s confidentiality rule was for the purpose of protecting the integrity of the investigation, and therefore held that the maintenance of such a rule did not violate the NLRA, the Board disagreed with this finding. To the contrary, the Board held that a generalized concern with protecting the integrity of an internal investigation is insufficient to outweigh an employee’s rights under Section 7 of the NLRA. Adopting a more demanding standard, the Board held that, before enforcing any confidentiality rule, it was the hospital’s burden to first evaluate whether application of the rule was warranted in the particular circumstances, applying such factors as whether: (1) witnesses needed protection, (2) evidence was in danger of being destroyed, (3) testimony was in danger of being fabricated or (4) there was a need to prevent a cover-up. The Board found that the hospital’s “blanket approach” – which relied on a general rule rather than a case-by-case determination of whether the integrity of the investigation was actually at risk – failed to meet this standard.

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