Overruling Banner Estrella Medical Center, 362 NLRB 1108 (2015), the National Labor Relations Board (NLRB) has held that investigative confidentiality rules are lawful Category 1 rules under The Boeing Company, 365 NLRB No. 154 (2017), where by their terms the rules apply for the duration of any investigation. Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019). Where a rule does not, on its face, apply for the duration of any investigation, a determination is made whether one or more legitimate justifications exist for requiring confidentiality even after an investigation is over. If legitimate justifications exist, a determination is then made whether those justifications outweigh the effect of requiring post-investigation confidentiality on employees’ exercise of their Section 7 rights.
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