An employer’s policies – one requiring confidentiality of workplace investigations and another requesting confidentiality – are unlawful under the NLRA, an NLRB Administrative Law Judge has held.  The Boeing Company, No. 19–CA–089374 (July 26, 2013).  ALJ Jeffrey Wedekind found both Boeing Company’s original policy and a revised policy on workplace investigations violated employees’ statutory right to discuss their terms and conditions of employment and to engage in concerted protected activity.

Boeing’s original policy required employees involved in HR investigations to maintain confidentiality.  Employee Joanna Gamble filed a complaint with HR regarding her supervisor and was interviewed about her allegations.  Gamble later was disciplined with a warning for discussing the investigation with her coworkers.  Boeing asserted that Gamble violated the company’s confidentiality policy, which she signed during the investigation.  The policy “directed” witnesses not to discuss the case with any Boeing employee other than the investigators or the witness’s union representative, if applicable.  Gamble then filed an unfair labor practice charge, claiming the discipline pursuant to the policy was unlawful under the NLRA because the policy restricted her right to discuss the terms and conditions of employment with other employees.

Shortly after the charge was filed, Boeing rescinded Gamble’s discipline and revised its policy. The new version “recommended” rather than “directed” employee witnesses refrain from discussing the case with other employees, but was still found unlawful

Current NLRB law established in 2012 in Banner Health, 358 NLRB 93, provides that a blanket rule prohibiting employee discussions of ongoing investigations is invalid because it does not take into account the employer’s burden to demonstrate a particularized need for confidentiality in any given situation.  Thus, an employer must “determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, and there [was] a need to prevent a cover up.”  (For more on this decision, please see Employer’s Suggestion to Employees to Avoid Discussing Internal Investigations Violates Labor Law, NLRB Finds.)

Consistent with current Board law, the ALJ held Boeing’s original policy, with its absolute insistence on confidentiality concerning workplace investigations, infringed employees’ statutory right to discuss their terms and conditions of employment and to engage in concerted protected activity.  The revised policy fared no better, the ALJ concluded, because the policy, despite being phrased as a request, could be interpreted reasonably by employees as imposing a confidentiality requirement, and nothing in it suggested that the employee would be free to disregard the policy.

Even rescinding the discipline did not spare the company a violation finding.  The ALJ concluded the discipline had been unlawful because Boeing had enforced an unlawful rule and failed to adequately repudiate the unlawful warning.

Since Banner Health, the NLRB’s Division of Advice provided the following wording for a lawful investigations rule (for more, see NLRB’s Division of Advice Spells Out Lawful Investigations Rule):

[Employer] has a compelling interest in protecting the integrity of its investigations.  In every investigation, [Employer] has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up.  [Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence.  If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

Employers must continue to review their personnel policies with labor counsel to ensure compliance with changing interpretations of the NLRA.  A per se prohibition on employee discussions of investigations, regardless of the circumstances will not stand up to NLRB scrutiny.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Linda R. Carlozzi Linda R. Carlozzi

Linda R. Carlozzi is a Principal in the New York City office of Jackson Lewis P.C. She joined Jackson Lewis in 1997 and specializes in traditional labor law. Ms. Carlozzi counsels clients in the development and implementation of preventive labor and employee relations…

Linda R. Carlozzi is a Principal in the New York City office of Jackson Lewis P.C. She joined Jackson Lewis in 1997 and specializes in traditional labor law. Ms. Carlozzi counsels clients in the development and implementation of preventive labor and employee relations programs. She advises both unionized and union-free clients on a full range of labor and employee relations matters, with a focus on traditional labor law. She has represented numerous employers during arbitration proceedings and negotiations. Ms. Carlozzi also counsels employers during union organizing drives and in labor and employment law proceedings before the National Labor Relations Board, the Equal Employment Opportunity Commission and other federal, state and city administrative agencies. She regularly represents employers in collective bargaining, provides advice on a diverse range of work place issues, such as those relating to corporate transactions, best workplace practices and conducts management training on a broad range of topics.