In yet another decision likely to face resistance from employers if appealed to the federal circuit courts, the National Labor Relations Board (NLRB) on July 30, 2012, ruled that the common employer practice of prohibiting employees from discussing ongoing investigations violates employees’ right under the National Labor Relations Act (NLRA) to engage in concerted activity. The ruling applies to union and nonunion employers since both are covered by the NLRA’s protection of concerted activity among any employees.
The NLRB’s ruling—as of now unchallenged—came in the case of James Navarro, a sterile equipment technician at Banner Estrella Medical Center in Phoenix. When Navarro learned in February 2011 that the hospital had a broken steampipe, he informed Ken Fellenz, his department’s senior manager, that he would not be able to sterilize surgical instruments. Fellenz and another supervisor told Navarro to use a low-temperature chemical sterilizing machine, in combination with hot water from a coffee machine. Navarro did not believe this method was sufficient and did not sterilize any instruments that day.
After learning the next day that someone else had sterilized instruments, Navarro shared his concerns with a co-worker, another supervisor and a nurse. After being angrily confronted by Fellenz, Navarro met with an HR representative, who advised Fellenz against corrective action because there was no procedure in place to support the alternative sterilization methods. Instead, they agreed that Navarro would be given nondisciplinary coaching.
Mum’s the Word
Later that week, Fellenz conducted Navarro’s yearly performance evaluation. In the behaviors section, Navarro was rated as not fully meeting expectations.
When Navarro complained to HR, he was instructed not to discuss the investigation with co-workers while it was ongoing.
HR Consultant JoAnn Odell told Fellenz that the evaluation was inconsistent since one half of the evaluation had Navarro not meeting expectations but on the overall evaluation he was said to fully meet expectations. Fellenz issued a revised annual performance, changing four of the five categories in the behavior section and concluding that Navarro met behavioral expectations.
On April 7, 2011, Navarro filed a charge with the NLRB’s Phoenix regional office, alleging that Banner violated Section 8(a)(1) of the NLRA. Section 8(a)(1) provides that it shall be an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of their rights guaranteed in Section 7. Section 7 states that employees shall, in addition to the right to self-organize and join unions, have the right to engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The employees do not have to work for a unionized employer to be protected by this provision.
On June 30, 2011, a regional director of the NLRB issued a complaint and notice of hearing before an administrative law judge (ALJ).
The ALJ decided on Oct. 31, 2011, that the original performance review was not motivated by any protected concerted activity, noting that it had been filled out prior to the concerted activity and had been based on unrelated complaints from co-workers. The ALJ also found that Odell’s instruction that Navarro not discuss the investigation with co-workers was intended for the legitimate business reason of protecting the investigation’s integrity. Therefore, the ALJ ruled that the instruction did not violate the NLRA.
But the ALJ also ruled that Banner violated the NLRA by including in its confidentiality agreement with all employees a prohibition against sharing private employee information such as salaries and discipline.
Banner appealed the ALJ’s ruling to the NLRB headquarters in Washington, D.C., and the NLRB’s acting general counsel cross-appealed, filing a brief on Navarro’s behalf.
The board adopted the ALJ’s ruling, agreeing that Navarro had not been unlawfully coached or disciplined and upholding the determination that the confidentiality agreement violated the NLRA. But it modified the ALJ’s ruling on the prohibition on employees discussing investigations, determining that this prohibition violated Section 8(a)(1) of the NLRA.
The NLRB explained that Banner’s generalized concern about protecting the integrity of its investigation was insufficient to outweigh employees’ NLRA concerted activity rights.
The board stated that in order to minimize the impact on NLRA rights, the employer must “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 board found that Banner’s “blanket approach clearly failed to meet those requirements.”
As a result, it decided that a rule prohibiting employees from discussing ongoing investigations of misconduct violated the law.
Dissenting, NLRB Member Brian Hayes said Banner had not enforced a rule, but merely made a suggestion. And, he added, the HR officer did not threaten Navarro with discipline if he discussed matters under investigation.
The two-member majority rejected the characterization of the instruction as a suggestion, noting that the prohibition on discussing the investigation was on Banner’s standard interview-of- complainant form under the heading “Introduction for all interviews.” While Odell testified she does not give the instruction to every employee being investigated, she frequently does.
Finally, Odell’s instruction to Navarro “had a tendency to coerce employees, and so constituted an unlawful restraint” of NLRA rights, the NLRB concluded (Banner Health System v. Navarro, 358 NLRB No. 93).
The ruling, like all NLRB decisions, may be appealed either to the U.S. Circuit Court of Appeals for the District of Columbia or to a circuit court in the place of the alleged violation, which in this case would be the 9th Circuit. No word yet on whether Banner will appeal. In any event, Section 10(g) of the NLRA states that the commencement of appellate proceedings shall not “unless specifically ordered by the court” stay the board’s order.
Allen Smith, J.D., is manager, workplace law content, for SHRM. To read the original article, please click here.