NLRB: Employers Can't Always Demand Confidentiality During Investigations

Banner Health System d/b/a Banner Estrella Medical Center and James A. Navarro (2012) ( NLRB Case 28–CA–023438) (Issued on July 30, 2012)

This 2-1 decision was issued by the National Labor Relations Board (NLRB) on July 30, 2012. The potential impact of the decision has slowly sunk in for the employer community. Although the decision itself is not directly binding on the public sector, there is always the possibility that PERB might adopt the decision’s holding under one or more of the public sector statutes that it administers in California.

The situation in Banner Health System is one familiar to anyone in human resources or labor relations. There was an internal workplace investigation being conducted by the employer. As part of the investigation, witnesses were given a standard instruction to maintain confidentiality. The NLRB held that a “blanket” instruction to employees to maintain confidentiality violated Section 7 of the NLRA. Section 7 provides employees the right to engage in “concerted activity” regarding their working conditions.

Fortunately, the NLRB did not hold that all confidentiality instructions are improper. The holding only applies to blanket instructions covering all situations. An employer may still require confidentiality during an investigation but bears the burden to establish that such a requirement is necessary to avoid fabricated testimony, the spoliation of evidence, etc.

Comments:

I disagree with this decision. To me, requiring witnesses to maintain confidentiality during an investigation is just common sense. Indeed, when investigating discrimination complaints maintaining confidentiality is arguably required by state and federal law in order to maintain a system whereby employees feel comfortable making such complaints without retaliation. This decision just seems to go in the opposite direction of what public policy requires.
In reading this decision, I was reminded of the decision in Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625. That case involved an “anti-huddling” rule: a rule prohibiting deputies from consulting with union representatives in groups of two or more, in order to prevent deputies from coordinating testimony (which has much the same effect as the rule in Banner Health Systems). In that case, the court held that such a rule was not negotiable under the MMBA because it did not significantly affect working conditions and constituted a fundamental management right. However, the court did not directly consider whether the ability to “huddle” together constituted concerted activity under the MMBA. Given the court’s ruling that the anti-huddling rule was not negotiable, an argument can be made that the same conduct shouldn’t be considered concerted activity. But given the NLRB’s decision in Banner Health Systems, it’s just a matter of time before someone tries that argument before PERB or the courts.
So what should a public employer do? As noted above, the decision does not apply to the public sector, so there is no requirement to do anything different. However, to be safe, employers may want to rethink giving a standard confidentiality instruction to all witnesses during an investigation. Instead, some thought should be put into deciding whether the circumstances of the investigation warrant such an instruction. If it does, employers should not hesitate to give it.