Labor: NLRB says employers cannot ban employee talks of workplace investigations

A NLRB ruling against Boeing Co. deems silencing rules a labor law violations

A recent National Labor Relations Board (NLRB) decision affirms that employers may not direct employees involved in workplace investigations to keep the details of those investigations confidential among other employees.  

In The Boeing Co., decided July 26, 2013, the NLRB held that Boeing’s policy directing employees to refrain from discussing workplace investigations with other employees violated federal labor laws. Additionally, the administrative law judge (ALJ) held that Boeing’s updated policy merely “recommending” that employees not discuss investigations was similarly unlawful.

The case concerned a female employee who complained to Boeing that a male coworker and supervisor had made inappropriate comments. The company responded by investigating the incident. Subsequently, the female employee shared her dissatisfaction with the investigation with some of her female coworkers. Boeing caught wind of this and notified the employee that she was in breach of the company’s confidentiality policy and issued a formal written warning. However, Boeing rescinded the warning and attempted to modify the confidentiality policy soon after the employee filed her unfair labor practice charge.

Despite softening the policy’s language, the court ruled Boeing’s policy impermissibly infringed on its employees’ rights to discuss among themselves the terms and conditions of their employment. The ALJ rejected the company’s argument that merely “recommending” confidentiality avoids violating the National Labor Relations Act (NLRA). Rather, the ALJ reasoned that Boeing’s recommendation should be treated as a request, and there was nothing in the policy to indicate that employees are free to discuss the investigation and disregard the policy if he or she chooses to do so.  

The ALJ also held that Boeing’s warning to the employee was unlawful, since it was an act of discipline pursuant to an unlawful policy. Likewise, the company’s repudiation of the warning was ineffective to cure its unlawfulness, since it came about seven weeks after it was issued and over a week after the employee filed her unfair labor practice charge. This proved to be not timely enough for the ALJ.

The judge did note, however, the important interests safeguarded by confidentiality, such as the integrity of investigations, preventing workplace retaliation and promoting an environment where employees feel comfortable reporting complaints. However, the judge was compelled by NLRB precedent to rule against Boeing.

Employers must always be mindful of company policies that restrict employees’ workplace communications. The NLRA protects employees’ rights to engage in “concerted protected activity,” which includes the discussion of terms and conditions of employment among employees. The Boeing case extends these protections to the discussion of workplace investigations and any company policy that purports to prohibit employees from talking about these investigations among themselves will likely be found to violate federal labor laws.

Contributing Author

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John Kuenstler

John F. Kuenstler is a partner in the Chicago office of Barnes & Thornburg LLP and a member of the Labor and Employment Department. Mr....

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