An employee complains to human resources about misconduct by another employee.  Human resources begins an investigation to determine whether the complaint is true.  During its investigation, it requests that employees it interviews keep the matter confidential.  Unlawful?  Potentially so, according to the NLRB majority in Banner Health System, 358 N.L.R.B. No. 93 (2012), a decision released yesterday.  

In Banner, the employer utilized an "interview of complainant" form during interviews of employees making a complaint.  On the preprinted form, according to the majority opinion, one of the six bullet points under the heading "instructions for all interviews" was a prohibition on talking to other employees about the investigation.  Moreover, the human resources representative testified that she gave the instruction not to discuss the investigation while it was ongoing to the employee at issue, but that she didn’t necessarily always give the instruction to everyone she interviews.

The NLRB majority concluded that the employer violated the NLRA.  Specifically, the majority found that the employer maintained and applied a rule that prohibited employees from discussing ongoing investigations of employee misconduct.  The majority rejected the employer’s "generalized concern" with protecting the integrity of its investigation.  Instead, the employer must make a case-by-case determination of the need for confidentiality, considering whether 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."  A "blanket approach" to confidentiality failed to meet these requirements.

Member Hayes (R) dissented.  Rather than reach the question of whether the employer’s interests justified the rule, however, Hayes found that there was no "rule" at all.  He found that the employer merely "suggested" that the employee at issue not discuss the investigation.  Further, he found that there was no threat of discipline attached to the human resources employee’s request.

Labor professionals will want to review the decision with labor counsel to assess whether, if a request, suggestion, or instruction to maintain confidentiality is used in the investigation process, that procedure should be changed.