[author: Michael C. Jacobson, XpertHR Legal Editor]
The National Labor Relations Board (NLRB) ruled recently that unionized employers may violate the NLRA by prohibiting the discussion of internal investigations. The ruling pertained to a dispute between Banner Health System (BHS), a hospital, and one of its unionized employees, James A. Navarro. Navarro claimed he was disciplined for expressing concerns regarding the sterilization of surgical instruments and instructed not to discuss the employer's ongoing investigation of his conduct.
After a steam pipe broke at the hospital, depriving the hospital of hot water, Navarro claimed he was directed to use hot water from a coffee machine to disinfect surgical instruments. He refused, citing patient safety. BHS then issued him a "coaching" which is akin to a warning for insubordination, while it investigated his conduct.
Navarro also claimed he was instructed not to discuss the ongoing investigation with his coworkers, a routine practice at BHS during investigations of employee misconduct. Further, BHS used a standard "Interview of Complainant" form, which instructed employees not to discuss the ongoing investigation.
After Navarro brought the action against his employer, an Administrative Law Judge initially found that BHS's conduct in that regard did not violate NRLA §8(a)(1), which bars employers from interfering with, restraining or coercing employees in the exercise of their rights guaranteed by NLRA §7, which enables employees to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection."
In analyzing the Administrative Law Judge's finding regarding the non-violation of NLRA §8(a)(1), the NLRB found that BHS did, in fact, violate the section because it had not demonstrated a legitimate business justification for prohibiting the discussion of the ongoing investigation, that would outweigh the employees' rights under NLRA §7. This is a significant ruling that clarifies the NLRB's position on the scope of §8(a)(1) and §7 and it is illustrative for employers of a unionized workforce who routinely instruct their employees not to discuss ongoing internal investigations.
As a result of this ruling, employers should be on notice that an across-the-board prohibition on the discussion of ongoing internal investigation is likely to violate the NLRA, specifically, §8(a)(1) and §7. In light of this ruling, in order to prohibit discussion of a pending internal investigation by unionized employees, an employer should demonstrate one or more of the following:
A witness who is involved in the investigation requires protection, in the form of confidentiality;
Evidence crucial to the investigation is in danger of being destroyed if employees are allowed to freely discuss the investigation;
Testimony is in danger of being fabricated if employees are allowed to freely discuss the investigation; or
The employer must prevent a cover-up.
Hyundai America Shipping Agency, +357 NLRB No. 80, slip op. at 15 (2011).
If the employer is unable to demonstrate any of those conditions with clear and convincing evidence, it should reconsider a prohibition on discussion of internal investigations by unionized employees as such a prohibition would be interpreted by the NLRB as an unlawful restraint on rights protected by NLRA §7 and §8(a)(1).