By:  Michele Haydel Gehrke, Esq.

On July 26, 2013, NLRB Administrative Law Judge Jeffrey D. Wedekind ruled that The Boeing Co.’s policy of routinely asking employees to refrain from discussing any investigation with other employees was unlawful.  This decision is in line with the Board’s earlier decisions, including Banner Estrella Medical Center, 358 NLRB 93 (2012) and the NLRB Advice Memorandum providing guidance on the Board’s position on investigation confidentiality policies (more detail HERE).

In this case, Boeing originally had a confidentiality policy which it routinely distributed to employees involved in Human Resources investigations that “directed” employees to maintain the confidentiality of the investigation by not discussing the case with any Boeing employee (other than the investigator or a union representative).

A non-union employee, Joanna Gamble, filed a complaint against her supervisor and asked Boeing to investigate.  Boeing initiated an investigation, and required Gamble to sign the confidentiality policy.  After the investigation concluded and the allegations could not be substantiated, Gamble discussed the outcome of the investigation with co-workers who also had complaints against the supervisor.  Boeing found out about the employees’ discussions and issued a written warning to Gamble for violating the confidentiality policy.

Gamble filed an unfair labor practice charge claiming that her discipline and the confidentiality policy violated the NLRA.  Boeing then rescinded the discipline and issued a revised confidentiality policy.  It was nearly identical in all material respects to the original confidentiality policy, except that instead of “directing” employees to maintain the confidentiality of the investigation it “recommended” that they do so.  The revised confidentiality policy was also routinely distributed to all employees involved in a Human Resources investigation.

The General Counsel of the Board issued a complaint challenging both versions of the confidentiality policy and Gamble’s discipline for violating the original policy.  Based on a stipulated record, the Judge ruled in favor of the General Counsel on all issues, relying on Board case law which he noted he was required to follow unless it is reversed by the United States Supreme Court.

Based on Banner Estrella and the NLRB’s Advice Memorandum regarding confidentiality policies for investigations, the Judge found that Boeing’s policy violated the NLRA because it would have a reasonable tendency to chill employees from exercising their statutory rights under Section 7 of the Act to engage in concerted activity.  Even once the policy was changed from “directing” to “recommending” that employees maintain the confidentiality of the investigation, the Judge still found that the revised policy violated the law because there was nothing assuring employees that they were “‘free’ to disregard the Company’s recommendation/request and ‘discuss the case if he or she chooses to do so.’”  In finding that both the original and revised policies violated the Act, the Judge relied on the fact that the policies were routinely distributed in all Human Resources investigations and there was no case by case consideration or balancing of the employer’s need for confidentiality with the employees’ rights under Section 7 as contemplated by the Board in its Advice Memorandum.

Boeing has indicated that it disagrees with the decision and will appeal.

The Judge’s ruling is yet another example of employer policies being struck down for allegedly violating employees’ Section 7 rights.  The case is significant because it continues down the path of Banner Estrella and strikes down a policy that does not “require” but only “recommends” that employees maintain confidentiality regarding an investigation.

This case serves as an important reminder that under current Board precedent employers (even those with non-union workforces) cannot issue blanket confidentiality policies when conducting investigations.  Employers should consider on a case by case basis whether confidentiality is truly needed, and only require confidentiality in those circumstances where it is reasonable to require it.  Employers should also be sure that any handbook or other employment policies regarding confidentiality track the sample approved language in the Board’s Advice Memorandum.  Finally, before any employee is disciplined or terminated for violating a confidentiality policy, employers should consider consulting with legal counsel to be sure that the confidentiality policy, and the discipline imposed for violating the policy, passes muster under the Board’s current case law.