Finding the Facts - Disciplinary and Harassment Investigation

all investigations was lawful based on legitimate business considerations, including protecting witnesses from retaliation or harassment, and preventing rumors from being spread.

The NLRB disagreed, ruling that the blanket policy infringed on the employees’ statutory rights to discuss among themselves the terms and conditions of their employment. It noted that, while an employer may require confidentiality in certain limited circumstances, even when those limited circumstances apply, the employer must minimize the impact of such a requirement on the rights of employees to engage in concerted activity. By having a blanket policy applied to all investigations, Boeing did not consider on a case-by-case basis whether the particular circumstances of that investigation justified the confidentiality directive and was designed to prevent legitimate concerns of witness harassment or intimidation or the destruction of evidence or other misconduct. Boeing updated its confidentiality notice to “recommend” that employees not share information instead of “requiring” it. The NLRB found, however, that this was a difference with no meaning. The test is not whether the language sounds permissive or not, but rather what the likely effects will be on employees. Given the totality of the circumstances here, the NLRB agreed that even though the language was a “recommendation,” employees would likely still believe they could not speak about the investigation and could not defy Boeing’s recommendation. The case-by-case need for specific facts to support an instruction not to discuss the investigation is based upon the National Labor Relations Board (NLRB) Decision Banner Health System 97 and a recent PERB decision subsequent to Banner , Perez v. Los Angeles Community College District . 98 In Banner , 99 the NLRB found that a private employer violated the National Labor Relations Act by asking an employee who was the subject of an internal investigation to refrain from discussing the matter while the employer conducted the investigation. 100 The employer, Banner Health System, provided its human resources employees with an interview form to use when interviewing employees as part of an internal investigation. One of the bullet points under "Introduction for all interviews" noted that employees should be told not to discuss ongoing investigations. Although the form was never provided to employees, one human resources manager testified that she frequently, but not always, instructed employees not to discuss the investigation. The NLRB rejected such a "blanket approach" justification. Instead, it noted that the employer had the burden "to first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up." The NLRB found that the general assertion of protecting the integrity of an investigation "clearly failed to meet" that burden. The Banner case was considered by the D.C. Circuit and the Court in 2017 held that the Board's invalidation of the Confidentiality Agreement was reasonable and supported by substantial evidence. But, because the record lacked substantial evidence that Banner actually maintained a categorical investigative nondisclosure policy, the Court granted the petition for review and denied enforcement as to that portion of the Board's Order. 101

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