PERB Adopts Banner Health Rule Prohibiting Blanket Confidentiality Clauses During Investigations

Los Angeles Community College District (2014) PERB Decision No. 2404-E (Issued on 12/24/14)

In 2012, the National Labor Relations Board (NLRB) issued its decision in Banner Health System (2012) 358 N.L.R.B. No. 93, holding that a “blanket” instruction to employees to maintain confidentiality during a workplace investigation violated Section 7 of the National Labor Relations Act. Section 7 provides employees the right to engage in “concerted activity” regarding their working conditions. (Click here to view my post on Banner Health).

In Los Angeles Community College District (2014) PERB Decision No. 2404-E, PERB adopted the Banner Health holding. In this case, an employee was placed on administrative leave pending a fitness for duty examination. The letter advising the employee of the administrative leave stated, “You are hereby directed not to contact any members of the faculty, staff or students.” The complaint from the Office of the General Counsel alleged that this directive interfered with employee rights.

In analyzing this case as an interference charge, the Board had little trouble finding that the employer’s directive had at least “slight harm” to employee rights. The Board noted that, “In the area of employer rules and directives, PERB does not look favorably on broad, vague directives that might chill lawful speech or other protected conduct.”

The Board then addressed whether the employer’s directive was justified by operational necessity. The Board rejected the employer’s argument that there was no harm since it never intended to prohibit the employee from contacting the union representative and that the letter to the employee was sent to the union. The Board held that the fact that the union was copied on the letter did not sufficiently make clear that the employer did not intend to intrude on protected rights. The Board noted that the letter was stamped “confidential,” which reasonably would be construed to prohibit any discussion of the matter. According to the Board, any ambiguity in the directive’s meaning is construed against the District as the promulgator of the directive. The Board also emphasized that no direct threat of discipline is required for the directive to unlawfully chill employee rights. Instead, the focus must be on the “employee’s right to communicate with coworkers about wages, hours and other terms and conditions of employment.”

Although the Board found that the employer’s directive was unlawful, the Board did state that in other situations an employer may have the right to demand confidentiality of its investigation. But the Board highlighted that the burden is on the employer to demonstrate such a need. Although the Board did not specify what evidence an employer would have to proffer to meet this burden, the Board did note that the context of any communication is important. Here, the Board found the employer’s language to be absolute and broad, and with no clarifiers.

Comments:

Given the NLRB’s decision in Banner Health, this was not a surprising decision from PERB. One critical point for employers to remember is that confidentiality can still be required – it just can’t be a boiler-plate requirement and you have to be prepared to justify such a requirement. So for most employers, this decision will require a change in practice in conducting investigations.
So what should public employers do? Here are my initial thoughts: 1) do not include a prohibition on communicating with others as boiler-plate language in any communication to employees as part of any investigation. Instead, evaluate every investigation on a case-by-case basis to determine whether such a prohibition is warranted; 2) if some confidentiality can be justified, make sure the directive not to communicate to others makes an exception for the employee’s union representative and/or counsel; 3) even if confidentiality can be justified, try to make the restrictions as narrow as possible. For example, perhaps the prohibition on communication is only necessary for certain witnesses and perhaps only for a certain time period. In essence, you want to be able to demonstrate to PERB that any potential harm to employee rights is more than justified by operational necessity.