Arbitration Agreements At-Will Employment Disclaimers Collective Bargaining Employer Investigations
Exclusive Bargaining Representatives National Labor Relations Act National Labor Relations Board Overly Broad Confidentiality Provisions Policies Against Union Insignia Practical Considerations for Employers Protected Activities Representation & Elections Process
Other Petitions & Elections Strikes and Picketing Unfair Labor Practices of Employers Unfair Labor Practices of Unions
Unfair Labor Practice Charges Union Organizing Tactics Unions Home HR Knowledge Central Home
Exclusive Bargaining Representatives National Labor Relations Act National Labor Relations Board Overly Broad Confidentiality Provisions Policies Against Union Insignia Practical Considerations for Employers Protected Activities Representation & Elections Process
Other Petitions & Elections Strikes and Picketing Unfair Labor Practices of Employers Unfair Labor Practices of Unions
Unfair Labor Practice Charges Union Organizing Tactics Unions Home HR Knowledge Central Home
Employer Investigations
In a line of recent decisions, the Board has made it virtually impossible for an employer to maintain the confidentiality of workplace investigations involving employee interviews because, under Section 7, employees have the general right to discuss workplace issues among themselves. In Banner Estrella Medical Center, the Board held that the practice of instructing or even asking employee witnesses to an investigation not to discuss the matter with others until the investigation was complete violated Section 7 of the Act. The Board disregarded the employer’s stated concern for the “integrity of its investigations,” noting that such a concern was “insufficient to outweigh employees’ Section 7 rights.”
In a subsequent Memorandum issued by the Board’s Division of Advice, the NLRB reiterated the basis for its decision in Banner Estrella, stating that “the Employer cannot maintain a blanket rule regarding the confidentiality of employee investigations, but must demonstrate its need for confidentiality on a case-by-case basis.” The Memorandum explained that “[a] blanket rule prohibiting employee discussions of ongoing investigations is invalid because it does not take into account the employer’s burden to demonstrate a particularized need for confidentiality in any given situation.”
Yet another NLRB decision, Piedmont Gardens, has further encroached on the confidentiality of employer investigations to allow greater flexibility for employees to come together in concert to address workplace concerns. In Piedmont Gardens, the Board held that an employer violated Sections 8(a)(1) and (5) of the Act when it failed to provide the union with the names, job titles, and/or written statements of three individuals who purportedly witnessed an employee engage in the misconduct that led to the employee’s termination. The Board noted that if an employer objects to providing witness statements on confidentiality grounds, “the Board balances the union’s need for the relevant information against any legitimate and substantial confidentiality interests established by the employer.”
Piedmont Gardens overruled the decades-old decision in Anheuser-Busch, which had held that written statements by employee witnesses are exempt from disclosure. On June 26, 2014, the U.S. Supreme Court issued a decision in the Noel Canning case that may impact the validity of the Banner and Piedmont Gardens investigation decisions and subsequent NLRB advice. In National Labor Relations Board v. Noel Canning, the U.S. Supreme Court held that President Obama’s “recess” appointments to the NLRB were invalid, calling into question any decisions issued by the Board during this time frame. The NLRB has indicated that it will work to resolve any cases affected by the Supreme Court’s ruling as expeditiously as possible. In the interim, employers should wait for further information from the NLRB before disregarding any opinions issued while the invalid Board was in place.
In distinction to the recent decisions of the NLRB, long ago the U.S. Supreme Court, in NLRB v. J. Weingarten Inc., held that union-represented employees have a right to request a union representative to be present during “investigatory interviews.” Investigatory interviews include meetings in which supervisors question employees to obtain information that could be used as a basis for discipline, or in which they ask employees to defend their conduct. If employees reasonably believe that discipline or other adverse consequences may result from what they say, they have “Weingarten rights” to demand union representation. Union representatives are not limited to observation. They can assist and counsel employees during the meeting. Employers are not required to advise the employee of this right in advance. The right to a union representative applies only to investigatory meetings, not to meetings in which a decision about a disciplinary matter is being communicated. To exercise his/her Weingarten rights, the employee must make a clear request for representation before or during the interview. After the employee makes the request, employers have three options:
Employers cannot punish an employee for making this request. In 2000, the NLRB decided that a non-union employee is similarly entitled to bring along a co-worker to an investigatory meeting with supervisors. But the NLRB reversed itself in 2004. Three non-union employees of IBM Corp. alleged that they requested, and were denied, co-worker representation during investigatory interviews about workplace harassment. Following their termination, the employees filed unfair labor practice charges against IBM. In rejecting the charges, the NLRB’s decision relied on an employer’s need to conduct confidential and discreet investigations in the workplace. The NLRB also commented on the difference between non-union and union work forces, where the presence of a union representative at an investigatory interview is essential to protecting the interests of the entire unit of represented employees. The NLRB concluded that non-union employees have the right to request the presence of a co-worker at an investigatory interview and cannot be disciplined for making this request. However, employers are not obligated to grant the request in the non-unionized setting. This decision may, however, be reversed once again by the current NLRB. Accordingly, non-union employers denying requests for representation must tread carefully.
In a subsequent Memorandum issued by the Board’s Division of Advice, the NLRB reiterated the basis for its decision in Banner Estrella, stating that “the Employer cannot maintain a blanket rule regarding the confidentiality of employee investigations, but must demonstrate its need for confidentiality on a case-by-case basis.” The Memorandum explained that “[a] blanket rule prohibiting employee discussions of ongoing investigations is invalid because it does not take into account the employer’s burden to demonstrate a particularized need for confidentiality in any given situation.”
Yet another NLRB decision, Piedmont Gardens, has further encroached on the confidentiality of employer investigations to allow greater flexibility for employees to come together in concert to address workplace concerns. In Piedmont Gardens, the Board held that an employer violated Sections 8(a)(1) and (5) of the Act when it failed to provide the union with the names, job titles, and/or written statements of three individuals who purportedly witnessed an employee engage in the misconduct that led to the employee’s termination. The Board noted that if an employer objects to providing witness statements on confidentiality grounds, “the Board balances the union’s need for the relevant information against any legitimate and substantial confidentiality interests established by the employer.”
Piedmont Gardens overruled the decades-old decision in Anheuser-Busch, which had held that written statements by employee witnesses are exempt from disclosure. On June 26, 2014, the U.S. Supreme Court issued a decision in the Noel Canning case that may impact the validity of the Banner and Piedmont Gardens investigation decisions and subsequent NLRB advice. In National Labor Relations Board v. Noel Canning, the U.S. Supreme Court held that President Obama’s “recess” appointments to the NLRB were invalid, calling into question any decisions issued by the Board during this time frame. The NLRB has indicated that it will work to resolve any cases affected by the Supreme Court’s ruling as expeditiously as possible. In the interim, employers should wait for further information from the NLRB before disregarding any opinions issued while the invalid Board was in place.
In distinction to the recent decisions of the NLRB, long ago the U.S. Supreme Court, in NLRB v. J. Weingarten Inc., held that union-represented employees have a right to request a union representative to be present during “investigatory interviews.” Investigatory interviews include meetings in which supervisors question employees to obtain information that could be used as a basis for discipline, or in which they ask employees to defend their conduct. If employees reasonably believe that discipline or other adverse consequences may result from what they say, they have “Weingarten rights” to demand union representation. Union representatives are not limited to observation. They can assist and counsel employees during the meeting. Employers are not required to advise the employee of this right in advance. The right to a union representative applies only to investigatory meetings, not to meetings in which a decision about a disciplinary matter is being communicated. To exercise his/her Weingarten rights, the employee must make a clear request for representation before or during the interview. After the employee makes the request, employers have three options:
- Grant the request and delay questioning until the representative or co-worker arrives and has the chance to consult privately with the employee
- Deny the request and end the interview immediately
- Give the employee a choice of having the interview without representation or ending the interview
Employers cannot punish an employee for making this request. In 2000, the NLRB decided that a non-union employee is similarly entitled to bring along a co-worker to an investigatory meeting with supervisors. But the NLRB reversed itself in 2004. Three non-union employees of IBM Corp. alleged that they requested, and were denied, co-worker representation during investigatory interviews about workplace harassment. Following their termination, the employees filed unfair labor practice charges against IBM. In rejecting the charges, the NLRB’s decision relied on an employer’s need to conduct confidential and discreet investigations in the workplace. The NLRB also commented on the difference between non-union and union work forces, where the presence of a union representative at an investigatory interview is essential to protecting the interests of the entire unit of represented employees. The NLRB concluded that non-union employees have the right to request the presence of a co-worker at an investigatory interview and cannot be disciplined for making this request. However, employers are not obligated to grant the request in the non-unionized setting. This decision may, however, be reversed once again by the current NLRB. Accordingly, non-union employers denying requests for representation must tread carefully.