Labor & Employment Law Daily NLRB rules 2-1 that employees were lawfully instructed to keep investigative interviews confidential
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Wednesday, April 21, 2021

NLRB rules 2-1 that employees were lawfully instructed to keep investigative interviews confidential

By Ronald Miller, J.D.

Investigative confidentiality rules that by their terms apply only for the duration of any investigation are categorically lawful under the analytical framework set forth in Boeing Co.

A divided NLRB, in a 2-1 decision, reversed an administrative law judge’s finding that an employer violated Section 8(a)(1) of the NLRA by instructing witnesses to keep their investigative interviews confidential. The Board disagreed with the ALJ that the directives were unlawfully unlimited in time and place because they did not include an express statement that employees could talk with others after the investigation was over. Rather, it noted that there was no evidence the directives were given pursuant to a general company policy or rule, or that they applied to anyone other than the employees interviewed during the specific investigation. Thus, the Board found that employees would reasonably understand the confidentiality restriction was limited to the duration of the investigation. Chairman McFerran filed a separate opinion dissenting in part (Alcoa Corp., April 16, 2021).

Investigatory interviews. In March 2018, the employer received reports that a shipping department employee had directed racially charged and national origin–based comments toward contract truckdrivers, exploited his position by unfairly forcing some drivers to wait excessive periods of time to unload their trucks, and generally subjected others to disrespectful treatment. In the process of investigating the reports, a labor relations specialist for the employer conducted interviews with four contract drivers and six bargaining unit employees. During those interviews, each employee was told to keep the interview conversation confidential, including from supervisors and other employees.

Union request for information. Based on the results of the investigation, the employer suspended the employee for three days pending further action. On the next day, April 7, the union made a preliminary request for information, including interview notes. In response, the employer provided summaries of all 10 investigatory interviews, with the names of the unit employees redacted. By letter dated April 9, the employer terminated the employee.

In response to more extensive information requests from the union, the employer provided the handwritten statements prepared by four of the interviewed unit employees, with their names redacted. In a May 18 email, one of the employees, a union steward at the time, advised the labor relations specialist that he had told the union’s grievance chair he had provided a statement supporting the allegations against the discharged employee. He was removed from the steward’s position, but there was no evidence he was disciplined for this discussion of the investigatory interview with a union official.

Confidentiality directive. The ALJ found that the employer violated Section 8(a)(1) when the labor relations specialist issued the confidentiality directive to employees interviewed as part of the investigation into the employee’s alleged misconduct. The ALJ found that the instruction interfered with employees’ Section 7 right to discuss a workplace disciplinary matter and was particularly problematic because the confidentiality instruction was unlimited by time or place on its face.

Ongoing investigations. After the ALJ’s decision issued in this case and the employer’s exceptions had been filed, the Board issued its decision in Apogee Retail LLC d/b/a Unique Thrift Store . In Apogee, the Board overruled precedent holding that an employer could lawfully restrict discussion of ongoing investigations only where it made a particularized showing of a substantial and legitimate business justification outweighing employees’ Section 7 rights. Instead, the Board held that investigative confidentiality rules that by their terms apply only for the duration of any investigation are categorically lawful under the analytical framework set forth in Boeing Co. Specifically, the Board found that “justifications associated with investigative confidentiality rules applicable to open investigations will predictably outweigh the comparatively slight potential of such rules to interfere with the exercise of Section 7 rights.”

Additionally, in Watco Transloading, LLC, the Board held that where it is presented with an oral one-on-one confidentiality instruction limited to a single specific investigation, it is appropriate for the Board to assess the surrounding circumstances to determine what employees would have reasonably understood concerning the duration of required confidentiality.

Duration of directive. Applying Apogee and Watco, the Board found that the confidentiality directives issued by the employer’s labor relations specialist were lawful. The Board noted that there was no evidence that the directives were given pursuant to a general company policy or rule, that they applied to anyone other than the employees interviewed during the specific investigation, or that the directives prevented those employees, or any other employees for that matter, from discussing the events giving rise to the investigation.

The Board disagreed with the ALJ that the directives were unlawfully unlimited in time and place because they did not include an express statement that employees could talk with others after the investigation was over. Rather, the Board found that employees would reasonably understand that the confidentiality restriction was limited to the duration of the investigation. The Board pointed out that upon conclusion of the investigation and the discharge decision, the employer promptly complied with the union’s requests for notes of the investigatory interviews, clearly signaling that it no longer considered the information to be confidential. Moreover, the employer took no adverse actions when the steward shared information with union officials.

Under such circumstances, the Board concluded that the interviewed employees would have reasonably understood that the confidentiality requirement was limited to the duration of the investigation.

Partial dissent. Chairman McFerran dissented from that portion of the majority’s decision finding that the employer acted unlawfully under Section 8(a)(1) by instructing witnesses to keep their investigative interviews confidential. According to McFerran, it was clear that the employer’s confidentiality instruction had a reasonable tendency to “interfere with, restrain, or coerce” employees in the exercise of their statutory rights. Moreover, she argued that the employer’s justification—the supposed reluctance of employees to cooperate with the investigation of a coworker unless promised confidentiality—had no evidentiary support. She regarded the majority’s decision as a tortured effort to excuse an employer’s obvious infringement of the Act.

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