Banner Health System, 362 NLRB No.
137 (2015), a majority of the NLRB Panel found that Human Resources Consultant
JoAnn Odell unlawfully requested employees who were involved in a workplace
investigation not to discuss the matter with their coworkers while the
investigation was ongoing. Odell made these requests pursuant to an “Interview
of Complainant” form bearing the title and logo of the Respondent’s corporate
parent, Banner Health System. The form, which bore the subheading “Confidential
Investigation,” prescribed a standard “Introduction for all Interviews.” That
introduction directed the investigator to instruct all interviewees that “[t]his
is a confidential interview,” to explain that the investigator “will keep [the]
conversation confidential,” and to request the interviewee “not to discuss this
with your coworkers while this investigation is going on, for this reason, when
people are talking it is difficult to do a fair investigation and separate
facts from rumors.” The prescribed introduction further directed the investigator
to inform the interviewee that the “[m]atter under investigation is serious,
and the company has a commitment/obligation to investigate this claim.”
Finally, the introductory language warns interviewees that any attempt to
influence the outcome of the investigation could be the basis for corrective
action up to and including termination.
to the Board majority, the judge did not appear to weigh the Employer’s general
interest in the integrity of its investigations, however legitimate it might
be, against employees’ equally legitimate interest, grounded in their Section 7
rights, in discussing workplace investigations potentially affecting their
terms and conditions of employment.
have a Section 7 right to discuss discipline or ongoing disciplinary
investigations involving themselves or coworkers. Such discussions are vital to
employees’ ability to aid one another in addressing employment terms and
conditions with their employer. See
generally Fresh & Easy Neighborhood Market, 361 NLRB No. 12, slip op.
at 5-6 (2014). Accordingly, an employer may restrict those discussions only
where the employer shows that it has a legitimate and substantial business
justification that outweighs employees’ Section 7 rights.
it is the employer’s responsibility to first determine whether in any given
investigation witnesses need protection, evidence is in danger of being
destroyed, testimony is in danger of being fabricated, and there is a need to
prevent a cover up. Only if the employer determines that such a corruption of
its investigation would likely occur without confidentiality is the employer free
to prohibit its employees from discussing these matters among themselves.
Tschiggfrie Properties, Ltd., 365
NLRB No. 34 (2017), the General Counsel excepted to the judge’s finding that
the Employer’s prehearing interviews with employee Bill Kane did not violate
Section 8(a)(1) of the National Labor Relations Act. The NLRB reversed the judge and found this to
be a violation.
Employer’s attorney, Davin Curtiss, and its General Manager, Tschiggfrie,
interviewed Kane twice in preparation for the hearing in this case. The first
interview was approximately a month before the hearing, and the second
interview was approximately a week before the hearing. During the first
interview, the Employer questioned Kane about the union campaign and Galle’s
approaching Kane to talk about the Union. Kane testified that he could not “honestly
say” whether the Employer told him that the first interview was voluntary, but
the Employer did not tell Kane that it would not take any action against him as
a result of the first interview. During the second interview, the Employer
again questioned Kane about the union campaign without telling him that the
interview was voluntary or assuring him that it would not take action against
him as a result of the interview.
an employer interviews an employee about protected activity in preparation for
an unfair labor practice hearing, “the employer must communicate to the employee
the purpose of the questioning, assure him that no reprisal will take place,
and obtain his participation on a voluntary basis.” Johnnie’s Poultry Co., 146 NLRB 770, 774-775 (1964), enf. denied 344 F.2d 617 (8th Cir.
1965). “The Board has held that compliance with Johnnie’s Poultry safeguards
constitutes the minimum required to dispel the potential for coercion in cases
where an employer questions employees in preparing for a Board hearing.” Albertson’s, LLC, 359 NLRB 1341, 1343
(2013) (internal quotations omitted), affd.
and incorporated by reference in 361 NLRB No. 71 (2014); see also Freeman Decorating Co., 336 NLRB 1, 19 (2001) (stating
that the Board takes a “bright-line approach” in enforcing the Johnnie’s Poultry safeguards), enf. denied on other grounds sub nom. Stage Employees IATSE v. NLRB, 334 F.3d
27 (D.C. Cir. 2003).
both interviews, the Employer questioned Kane about protected activity by
asking him about the union campaign and Galle’s approaching him to talk about
the Union. The Employer failed to provide Kane with assurances against
reprisals at both interviews and failed to inform him that his participation in
the second interview was voluntary. By questioning Kane at the prehearing interviews
without complying with Johnnie’s Poultry,
the Employer violated Section 8(a)(1).
problem in Tschiggfrie could have
been easily prevented—give the Johnnie’s
Poultry warning before interviewing employees. Banner is much more troublesome. It attacks a common employment practice and forces employers to document and
justify an admonishment that employees should not discuss an ongoing investigation with
· Michael R. Lied· Howard & Howard Attorneys PLLC· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602· (309) 999-6311· MLied@howardandhoward.com