Workplace Investigation Ruling From the National Labor Relations Board Further Dilutes Management Rights
The National Labor Relations Board continues its assault on the ability of management to run its operations efficiently. This should come as no surprise as the Board has made 2012 a year to remember. It issued new posting rules, then rescinded them. It imposed new representation election rules until a federal court invalidated them due the NLRB’s lack of a quorum when it made the rules. The Board’s “Operations Management Memo” limits an employer’s restriction of employees’ use of social media. Unabashed, the Board is infiltrating – and damning – the ability of management to conduct workplace investigations.
Banner Health System operates a hospital in Arizona. The case of Banner Health System/James Navarro (NLRB, July 30, 2012) centers around Mr. Navarro, an employee who worked as a sterile technician at the hospital. One morning, Mr. Navarro informed his supervisors that he could not sterilize surgical equipment due to a broken steam pipe. He refused his supervisor’s alternatives to steam pressure cleaning, which led to minor disciplinary action. At the same time, Mr. Navarro was given his yearly performance evaluation. His less than stellar evaluation was based, in part, on complaints made by co-workers of the technician.
The Board hearing revealed that in the course of the investigation of those complaints, HR asked the co-workers not to discuss the matter while the investigation was ongoing. In addition, employees were subject to a routine confidentiality agreement, which provided that private employee information (such as salaries, disciplinary action, etc.) is to be kept confidential and that failure to do so could lead to corrective action.
The NLRB ruled that prohibiting Employee A from discussing private employee information about Employee B violates Employee A’s Section 7 rights (the right of employees to communicate to coworkers about wages, hours, and other terms and conditions of employment). According to the Board, an employer can prohibit employee discussion of on-going investigations in situations in which it has a legitimate business justification that outweighs an employee’s right to communicate with coworkers. Routine or generalized prohibitions will not outweigh employee rights. Rather, the employer must be able to show that, as to a specific investigation, the employer made a determination as to whether any witnesses needed protection, evidence was in danger of being destroyed, or testimony was in danger of being fabricated.
Once again, the National Labor Relations Board has callously made HR’s job more difficult, particularly when it comes to workplace investigations. Employers should consult with legal counsel to develop strategies for workplace investigations that comply with this decision.
For additional information about this alert, please contact a member of the Labor and Employment Group.