In Apogee Retail, 368 NLRB No. 144 (2019), the NLRB overruled the Obama Board’s decision in Banner Estrella Medical Center, 362 NLRB 1108 (2015) and held that investigative confidentiality rules that by their terms apply only to investigation participants and last only for the duration of an investigation are categorically lawful because the justifications for such rules are self evident and predictably outweigh the comparatively slight potential for such rules to interfere with the exercise of Section 7 rights. In this day and age of workplace harassment claims and internal investigations, Apogee was welcome news for employers because it ended the legal requirement that an employer prove that it had a particularized, legitimate and substantial business justification for compulsory confidentiality and because that said justification outweighed employee Section 7 rights in order for such prohibitions to be adjudged lawful.
That the current Board said what it meant and meant what it said in Apogee was borne out by the Board’s more recent decision in Securitas Security Services, USA, 369 NLRB No. 57, issued last week on April 14, 2020 where an employee interviewed in an internal racial discrimination investigation after witnessing an incident between a complaining co-employee and a supervisor was instructed by management officials “not to discuss the investigation or the incident with anyone.” Thereafter, at the employee’s request and in emails, the Employer clarified its earlier “not to discuss” admonition to mean that “all employees are barred from talking during the time of the investigation in any circumstance” and that after an investigation was concluded and if anyone started conversing about it, causing “a distraction to the workplace, [then] anyone involved in [the conversation] could face discipline.”
Applying the rule in Banner Estrella, the administrative law judge trying the case found the Employer’s investigative confidentiality admonition to be a violation of Section 8(a)(1) of the NLRA because Securitas had not shown that it had a particularized, legitimate and substantial need for confidentiality. However, the Board reversed the ALJ and rejected the General Counsel’s claim that the Employer’s instruction not to discuss the internal investigation was unlawful, citing Apogee and finding that the employer’s clarifying email expressly limited the Employer’s confidentiality admonition to “the time of the investigation” and, thus, did not extend beyond the duration of the investigation. Based on this limiting clarifying text, the Board found the Employer’s rule lawful.
But then, in dicta appearing in footnote 5 of the decision, the Board went a step further, addressing whether and when conversations among employees about a concluded investigation could be the lawful basis for discipline. Affirming the lawfulness of the second sentence of Securitas’s clarifying email which prohibited post-investigation conversations that became workplace distractions, the Board concluded that no reasonable employee would understand this text to be part of the Employer’s confidentiality rule, but rather as a reminder that post-investigation discussions of an investigation, while not banned, would remain subject to an employer’s work rules prohibiting “disruptive, inappropriate or abusive” workplace investigation. Based on this footnote, it would appear that rules prohibiting post- investigation discussions that become or are “disruptive, inappropriate or abusive” are facially valid and, thus lawful under the Act.
Likewise, based on the Board’s reasoning in this footnote, an employer’s discipline of an employee because his/her post-investigation discussion of an investigation that, in fact, caused disruption or was inappropriate or abusive may too be lawful. However, much union and other protected concerted activity is easily characterized as disruptive or inappropriate and often considered abusive. Thus, the line separating conversations that are protected from those that are not and that may be the lawful basis for discipline is seldom bright. Accordingly, if an employer wishes to discipline an employee because his post-investigation statements about an investigation were disruptive, inappropriate or abusive, they would be wise to consult labor counsel before adversely acting on those statements.