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Banning Talk of Work Investigations Unlawful

T he National Labor Relations Board (NLRB) ruled July 30 that a common practice of prohibit-

ing employees from discussing ongoing investigations violates employees' right, under the National Labor Relations Act (NLRA), to engage in concerted activ- ity. The ruling applies to union and nonunion employers, both of which are covered by the act's protection of con- certed activity among any employees.

The board's ruling came in the case of James Navarro, a sterile-equipment technician at Banner Estrella Medical Center in Phoenix. In early 2011, a bro- ken steampipe prevented the ability to sterilize surgical instruments as usual. Navarro refused to use the alternate methods proposed by his department's senior manager because Navarro deemed them to be inadequate.

Navarro shared his concerns with co-workers. In subsequent discussions with an HR representative. Navarro was instructed not to discuss the

investigation while it was ongoing. On April 7, 2011, Navarro filed

a charge with the NLRB, alleging that Banner violated Section 8(a)(l) ofthe NLRA. This text makes it an unfair labor practice for an employer

to interfere with, restrain or coerce employees in the exercise oftheir rights guaranteed in Section 7. Section 7 states that employees shall, in addition to the right to organize and join unions, have the right to engage in "other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection."

In a 2-1 decision, a panel ofthe NLRB ruled that the prohibition on employees discussing investigations vio- lated Section 8(a)(l).

The board explained that Banner's general concern about protecting the integrity of its investigation was insuffi- cient to outweigh employees' concerted activity rights. The board stated that to minimize the impact on those rights, the employer must "first determine whether in any given investigation wit- nesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated or there was a need to prevent a cover-up." The board found that Banner's "blanket approach clearly failed to meet those requirements."

By Allen Smith, J.D., manager, workplace law content, for SHRM.

Poster Ruling Appeal Pending The National Labor Relations Board's (NLRB) notice

posting ruie isn't dead yet

On Juiy 5, a retired law professor, the AFL-CIO

and Change to Win fiied a friend-of-the-court brief

with the U.S. Court of Appeals for the District of

Columbia, challenging a March 2 decision thatthe

board went too far when it issued a rule that made

employers' faiiure to post a notice about National

Labor Relations Act rights an automatic violation of

the law {National Association of Manufacturers v.

/V¿/?e,D.D.C., No. 11-1629).

The ruie has been on hiatus since the D.C.

Circuit on April 17 barred the NLRB from enforc-

ing it, pending appeai of a D.C. District Court

ruling. The D.C. Circuit issued this injunction four

days after a judge in South Caroiina ruied that

the board did not have the authority to issue the

ruie {Chamber of Commerce v. NLRB, D. S.C., No.

11-CV-2516-DCN).

Oral argument in the D.C. case is scheduied

for Sept. 11.

—Alien Smith

September 2012 • H R Magazine 11

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