Labor & Employment Law I MARCH 1, 2017

NLRB Rulings Impede Employer Investigations

In 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.

According 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.

Employees 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.

Thus, 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.

In 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.

The 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.

When 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).

During 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).

The 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 coworkers.