Boeing's Investigation Confidentiality Policies Violate NLRA

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By Jay-Anne Casuga

Aug. 31 — Boeing Co.'s confidentiality policies generally prohibiting employees involved in human resources investigations from discussing those matters with co-workers violate federal labor law, the National Labor Relations Board 2-1 held Aug. 27.

Affirming an administrative law judge's ruling against Boeing, Chairman Mark Gaston Pearce and Member Kent Y. Hirozawa found that the company's policies impermissibly infringed on employees' rights to discuss their employment terms and conditions and to engage in protected concerted activity under Section 7 of the National Labor Relations Act.

Member Harry I. Johnson partially dissented, arguing that Boeing's revised confidentiality policy, which recommends that employees refrain from discussing HR investigations, was lawful.

Boeing Barred Investigation Discussions

Joanna Gamble, an employee at a Boeing facility in Renton, Wash., filed an unfair labor practice charge against the company after she was disciplined for communicating with her co-workers about the company's internal investigation of Gamble's allegations against a Boeing supervisor.

Gamble was disciplined, consistent with the terms of a confidentiality notice the company routinely issued to employee witnesses in HR investigations.

The original notice, which was used at most Boeing facilities until November 2012, stated: “you are directed not to discuss this case with any Boeing employee other than company employees who are investigating this issue or [a] union representative.”

After November 2012, Boeing revised that policy and added the following language: “we recommend that you refrain from discussing” HR investigations with any employees other than company or union representatives. The revised policy further provided that if co-workers or managers asked to discuss an investigation, the company “recommend[s] that you inform him or her that Human Resources has requested that you not discuss the case.”

NLRB ALJ Jeffrey D. Wedekind found in June 2013 that Boeing's “blanket confidentiality directive” violated employees' rights under the NLRA. 

Board Finds Section 7 Violation

Adopting the ALJ's findings, the board majority held that Boeing's initial policy was unlawful.

The board acknowledged that employers may “legitimately require confidentiality in appropriate circumstances.” However, it said employers “must also attempt to minimize the impact of such a policy” on activity protected by the NLRA.

“Thus, an employer may prohibit employee discussion of an investigation only when its need for confidentiality with respect to that specific investigation outweighs employees' Section 7 rights,” the board said.

For example, it explained that an employer could demonstrate a legitimate and substantial business justification for requiring confidentiality where there are concerns about witness intimidation or harassment, destruction of evidence or other misconduct that would compromise the investigation's integrity.

In the present case, the board said, Boeing's “generalized concern about protecting the integrity of all of its investigations was insufficient to justify its sweeping policy.”

Additionally, the board found that Boeing's revised policy continued to violate employees' Section 7 rights given its “reasonable tendency to prohibit protected activity.”

The revision still clearly communicated Boeing's desire for confidentiality, the board said, adding that the company also routinely requested that employees sign the notice, which contained no language assuring workers that they could disregard the company's recommendation that they refrain from discussing HR investigations.

Dissent: Revised Policy Lawful

Dissenting in part, Johnson agreed that Boeing's original confidentiality policy was unlawfully overbroad, but he said the revised policy passed muster under the NLRA.

Johnson said Boeing's “right to communicate [a] legitimate desire for confidentiality in noncoercive terms” is protected by NLRA Section 8(c), which allows employers to express views, arguments or opinions without committing an unfair labor practice “so long as the employer's communications contain no threat of reprisal or promise of benefit.”

The revised policy contains no mandate prohibiting employee discussions of HR investigations, expresses only Boeing's preference regarding confidentiality and includes no prohibited threats or promises, Johnson said.

To contact the reporter on this story: Jay-Anne Casuga in Washington at jcasuga@bna.com.

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com.

Text of the opinion is available at http://www.bloomberglaw.com/
public/document/NLRB_Board_Decision_
The_Boeing_Company_362_NLRB_No_195_2015_BL_27
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