Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...
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.
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.
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.
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 firstname.lastname@example.org.
To contact the editor responsible for this story: Susan J. McGolrick at email@example.com.
Text of the opinion is available at http://www.bloomberglaw.com/
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)