NLRB Looks to Circumstances to Determine Duration of Confidentiality Requirement in Investigation

In Alcoa Corp., the National Labor Relations Board addressed an important issue to both non-union and unionized employers alike concerning workplace investigations. Most importantly, the Board reaffirmed that an employer does not violate the National Labor Relations Act (NLRA) when it instructs employees to keep investigative interviews confidential for the duration of the workplace investigation. Additionally, the Board concluded that the employer violated the NLRA by failing to provide the union with the names of employees who provided witness statements during investigative interviews.

Confidentiality Instruction: While investigating allegations that an employee made racially charged and discriminatory national origin-based comments to other employees, the company’s labor relations representative reminded employees that their interview was to remain confidential. The company’s representative did not specifically advise that the confidentiality directive was limited to the duration of the investigation.

In Apogee Retail LLC d/b/a Unique Thrift Store the Board overruled its precedent and held that employers may lawfully issue written rules restricting discussion of ongoing investigations for the duration of the investigation. The Board in Apogee further held, however, that the ruling was not applicable to nonparticipants in an investigation, or to rules prohibiting employees from discussing the events giving rise to an investigation – provided the participant does not disclose information they learned or provided during the investigation. In Watco Transloading, the Board held that Apogee applies to an employer’s one-on-one confidentiality instruction, as well. In Watco, the Board concluded that where an employer provides a one-on-one confidentiality instruction limited to a specific investigation, the Board must assess surrounding circumstances to determine what employees would have reasonably understood concerning the duration of the required confidentiality.

In this case, the Board found that the direction was lawful. The Board initially noted that the directive did not apply to nonparticipants in the investigation, and that the directive did not prevent employees from discussing the events giving rise to the investigation. The Board reasoned that the directive was not unlimited in duration simply because the employer failed to clearly state for how long the directive was effective. The Board reasoned that employees would reasonably understand the confidentiality restriction to apply only for the duration of the investigation. For example, after the employee under investigation was terminated, the employer turned over its investigation notes and witness statements (with names redacted). Additionally, the employer did not discipline a witness who had discussed his interview with the union after the employee’s discharge.

Request for Witness Names: The Board, however, found that the company violated the NLRA by failing to provide the union with the names of employees who provided statements during the company’s investigation. The Board reasoned that the names were relevant and necessary to the union’s pending grievance, and the company failed to demonstrate a legitimate confidentiality interest that outweighed the union’s need for the information. For example, the Board noted that there was no assertion that the union was retaliating against employees for cooperating with the investigation.

Takeaway: This is another positive decision in the arena of workplace investigations for unionized and non-union employers alike. Initially, employers should ensure its representatives advise investigation participants that any confidentiality requirement exists only for the duration of the investigation. But if such a qualification is forgotten, the Board will look at the surrounding circumstances to determine if a reasonable employee would understand that confidentiality was required only for the term of the investigation. Finally, unionized employers should consider whether they have legitimate confidentiality interests outweighing the union’s need for the names of employees who participated in the investigation. Absent such evidence, it is likely that the employer will have to provide the names to the union.