August 7th, 2012

NLRB ticks off HR with new restrictions on investigation secrecy

For decades, the NLRB has been under republican control and served employers’ needs to look the other way as union organizers are indiscriminately fired for doing what should be protected by law. On Jan. 9, 2012, President Obama made a recess appointment of Richard Griffin, a long-time union attorney, to the Board. Griffin joined Sharon Block, winner of the JFK Labor Law Award, and Chairman Mark Pearce whose prior legal experience was with labor. In May, disgraced republican member Terence Flynn resigned after two Inspector General reports concluded that he had leaked information about NLRB deliberations prior to decisions to Mitt Romney’s adviser. There are now 3 democrats and one republican, Brian Hayes, on the Board.

Now come two recent decisions that make employers and HR livid.

Direct from the NLRB website under “Rights We Protect”

The National Labor Relations Board protects the rights of most private-sector employees to join together, with or without a union, to improve their wages and working conditions. If you believe your rights have been violated, or that an employer or a union has engaged in unlawful conduct, you may file a charge through one of our regional offices.

On July 30, 2012 the NLRB reversed on a 2-1 vote (Pearce not involved) the traditional gagging of employees when HR is conducting one of their infamous “investigations.” (my emphasis). HR routinely tells people involved in their fact finding to not speak to others about the matter. HR might say it wants to protect integrity of their process.

Instead, the NLRB ruled:

protecting the integrity of [its] investigations is insufficient to outweigh employees’ Section 7 rights. Rather, in order to minimize the impact on Section 7 rights, it was the Respondent’s [Employer’s] burden “to first determine whether in any give[n] investigation witnesses need[ed] 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.” Id. The Respondent’s blanket approach clearly failed to meet those requirements. Accordingly, we find that the Respondent, by maintaining and applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct, violated Section 8(a)(1) of the Act.

Thus employees’ rights trump HR’s desire to keep the investigation secret. The NLRB not only rendered a decision in the case [Banner Health System v. Navarro, Case 28–CA– 023438], it ordered the employer in the case to post this formal Notice to Employees.


The National Labor Relations Board has found that we violated Federal labor law
and has ordered us to post and obey this notice.


– Form, join, or assist a union
– Choose representatives to bargain with us on your behalf
– Act together with other employees for your benefit and protection
– Choose not to engage in any of these protected activities.

WE WILL NOT maintain or apply the provision in our confidentiality agreement that contains the following language “Private employee information (such as salaries, disciplinary action, etc.) that is not shared by the employee.”

WE WILL NOT maintain or apply a rule prohibiting employees from discussing ongoing investigations of employee misconduct.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights set forth above.


What is not clear is whether the ruling prohibiting employee gag orders with respect to ongoing investigations also applies to completed investigations. I hope so. It rankles the people who bravely testify knowing they face predictable retaliation from participating in an investigation that at the conclusion they learn nothing about either the decision or the punishment. HR cloaks the entire process under the guise of “confidentiality” and does not disclose.

In fact, secrecy protects only the accused wrongdoer. Investigation outcomes affect all workers in a unit. When they cooperate with the employer, expecting truth seeking, they are quickly disappointed to see that nothing changes. Nothing done means the investigation was a sham, a cover-up. The NLRB seemed to recognize this.


April 30, 2012 was the date the NLRB set for mandating U.S. employers to display a new poster. The date was twice moved to allow for more employer education. The poster simply restates the rights workers have under the 1935 National Labor Relations Act, Section 7, to unionize without employer interference. Employer groups (the National Association of Manufacturers and the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce) fought in court to stop employees from knowing their rights, claiming the NLRB had no statutory authority to mandate. The D.C. Circuit Court of Appeals granted employers’ request to halt the poster mandate. It said the NLRB had the authority but to penalize employers who did not post was unlawful. The dispute is still tied up in court.

Because employers routinely and illegally fire union organizers and sympathizers with impunity, they cannot stand workers knowing their rights. Here is the simple poster that so threatens the Chamber of Commerce and other business groups.


Finally, in June, the NLRB launched a new web page for non-unionized workers (the vast majority in the U.S.) to alert them to rights afforded under the NLRA. Specifically, things workers can do called “Protected Concerted Activity.” Here is the overview of that site.

Is the activity concerted?

Generally, this requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others.

Does it seek to benefit other employees?

Will the improvements sought – whether in pay, hours, safety, workload, or other terms of employment – benefit more than just the employee taking action? Or is the action more along the lines of a personal gripe, which is not protected?

Is it carried out in a way that causes it to lose protection?

Reckless or malicious behavior, such as sabotaging equipment, threatening violence, spreading lies about a product, or revealing trade secrets, may cause concerted activity to lose its protection.

It appears the NLRB is trying to help workers, who are labor, for a change. We wish them continued luck against obstructionist employers.


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This entry was posted on Tuesday, August 7th, 2012 at 1:39 pm and is filed under Rulings by Courts, Tutorials About Bullying, WBI Education, Workplace Bullying Laws. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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