Wyatt Employment Law Report

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NLRB Finds Requesting an Employee Not to Talk to Other Employees During an Investigation to be a Violation

By Edwin S. Hopson

In Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (2012), decided July 30, 2012, the NLRB in a 2-1 decision (Members Griffin and Block in the majority, and Member Hayes dissenting), held that an employer representative who was conducting a workplace investigation violated employee Section 7 rights by telling the complaining employee not to discuss the matter with other employees while the investigation was pending.

The NLRB administrative law judge hearing the case stated in his decision:

“During the hearing, General Counsel amended the complaint to allege that Respondent’s confidentiality agreement and interview of complainant form violates Section 8(a)(1) of the Act. The interview of complainant form is not given to employees. During interviews of employees making a complaint, [employer representative] Odell asks employees not to discuss the matter with their coworkers while the investigation is ongoing. I find that suggestion is for the purpose of protecting the integrity of the investigation. It is analogous to the sequestration rule so that employees give their own version of the facts and not what they heard another state. I find that Respondent has a legitimate business reason for making this suggestion. Accordingly, I find no violation.” 

The Board panel majority reversed the ALJ and nevertheless found a violation.  In dissent, Member Hayes stated:

“Contrary to my colleagues, I would affirm the judge’s dismissal of the allegation that the Respondent promulgated an unlawful work rule prohibiting employees from discussing matters related to an ongoing investigation. It is axiomatic that, to violate the Act, an employer’s work rule must be an actual work rule with binding effect on employees.  [Citation omitted].  Here, … the Respondent did not promulgate any rule at all. It merely suggested that employees not discuss matters under investigation. I therefore respectfully dissent.”

It would appear that the Obama Board is now reaching into areas previously thought to be safe ground by HR managers.  Whether the courts will enforce such decisions remains to be seen.