By: Paul Galligan, Esq. & Samuel Sverdlov, Esq.
Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, here, here, here, here, here, & here to find prior posts.
In Banner Health Systems, 362 NLRB No. 137 (June 26, 2015) (originally decided in 2012 and reaffirmed upon remand following Noel Canning), one of the Obama Board’s more overreaching decisions, the 2-1 Board majority found that the employer unlawfully maintained a policy of asking employees during investigatory interviews not to discuss the internal investigation with others. The Board majority did so based on testimony by a human resources investigator, who asked an employee not to discuss the on-going investigation with anyone, and the fact that the investigator sometimes used a checklist form that contained this point. The investigation did not even involve Section 7 activity, but the majority nevertheless reasoned that employees could reasonably construe this refrain as impeding their Section 7 rights.
The Board majority proceeded from there to announce a new rule prohibiting employers from promulgating general rules barring employees from discussing ongoing investigations. The Board majority provided limited exceptions if witnesses needed protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there was a need to prevent a cover up. (On appeal, the DC Circuit remanded this part of the ruling back to the Board based on the lack of substantial evidence.)
As it stands, the Banner Health Systems rule and the limited exceptions have made it virtually impossible for employers to create meaningful guidelines for internal investigators to instruct employees on the confidentiality of investigations.
The lengthy but sharp dissent from Phil Miscamarra provides an indication of how the new Trump Board and the Division of Advice will review Banner Health Systems. Yesterday’s decision in Boeing Company (3-2 decision overruling the “reasonably construe” standard of Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) makes it a racing certainty that the Obama Board decision in Banner Health Systems will no longer fly.
Should you have any questions about a current or proposed confidentiality policy, or requiring confidentiality during internal investigations, please contact the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations Team to be sure your company’s approach passes legal muster under current law.