To justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees' Section 7 rights. See Hyundai America Shipping Agency, 357 NLRB No. 80, slip op. at 15 (2011) (no legitimate and substantial justification where employer routinely prohibited employees from discussing matters under investigation). In this case, the judge found that the Respondent's prohibition was justified by its concern with protecting the integrity of its investigations. Contrary to the judge, we find that the Respondent's generalized concern with 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 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.
Whether the HR consultant's instruction was a directive or a mere suggestion, "had a reasonable tendency to coerce employees, and so constituted an unlawful restraint of Section 7 rights." The Board also found it irrelevant that the charging party was not threatened with discipline if he violated the request to not discuss the matter until the investigation was complete. "The law, however, does not require that a rule contain a direct or specific threat of discipline in order to be found unlawful."
Therefore, unless an employer (union or non-union) can show that it has more than a generalized concern with protecting the integrity of an internal investigation and can show that there is a legitimate issue with fabricated testimony, protection of evidence or need to prevent a cover-up, it will need to immediately sequester witnesses during an investigation and interview them almost simultaneously in order to prevent witness contamination.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
