Monday, October 29, 2012

NLRB Prohibits Confidentiality in Harassment Investigations

Here goes the NLRB again, trying to make itself relevant in today’s modern, non-unionized workforce.  In the case of Banner Health System, 358 NLRB No. 93 (July 30, 2012), the NLRB determined that an employer’s instructions to employees not to discuss the investigation with co-workers violated the NLRA. 

Pursuant to section 8(a)(1) of the NLRA, it is unlawful for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”  Section 7 allows employees to engage in concerted activities for collective bargaining or other mutual aid or protection.  The NLRB concluded that instructing employees not to discuss the investigation with co-workers "had a reasonable tendency to coerce employees in the exercise of their [NLRA] rights." 

Personally, it is important for me to conduct investigations that are not tainted by a “collective memory” created by employees conversing among themselves.  When employees converse, one perception is created.  Other perceptions or understandings are forgotten or ignored.  Of course, this occurrence can prevent an investigator from getting at the truth of the situation. 

In addition, the parties may be prejudiced by false or even true, but unkind, words about them.  Rumor may become fact.  Even the mere allegation, even without substantiation, can cause great harm.  Thus, I appreciate it when employees don’t discuss the merits of an investigation, at least until I have concluded my work. 

The NLRB does not seem to share my concern.  A generalized need to protect the integrity of the investigation is not sufficient to justify confidentiality.  What an investigator must show is:  (1) The need to protect witnesses; (2) a likelihood that evidence will be destroyed; (3) a threat that other testimony will be falsified; or (4) the need to prevent a cover-up.  Frankly, I think these four elements are a given in every case.  Witnesses should be protected, not just against retaliation, but also against potentially wrong (or false) allegations.  Evidence will be destroyed, or redefined, as employees discuss the incidents more frequently. 

I have to believe that a professor somewhere in this country has done a study on the effects of employee communications on the investigation process.  If not, I’m going to ask my buddy, Jim Schmidtke, a professor at Fresno State who has done some very good research on issues of harassment, to look into the matter.  This is a serious matter that the NLRB waded into without, in my opinion, much thought. 

I understand maybe if an employer threatens jobs we might have a different situation.  But the NLRB thinks its rule should apply whether or not an employer threatens discipline.  Wow!  Get real people. 

So what do you do?  Make sure your investigators understand this ruling.  Make sure you have competent investigators who know how to conduct investigations, get information from witnesses, and make witnesses feel comfortable with them and with the process. 

I would also vote for Romney.  I doubt the NLRB would be so assertive had it not been for the Obama Administration and its chumminess with unions. 

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