Banner Health System: NLRB Holds That Employer Cannot Prohibit Employee from Discussing Complaints with Co-Workers During Investigation

In Banner Health System d/b/a Banner Estrella Medical Center and James A. Navarro, 358 NLRB No. 93 (7/30/12), the National Labor Relations Board held that an employer violated section 8(a)(1) of the National Labor Relations Act by routinely asking employees who made work-related complaints not to discuss their complaints with their coworkers while the employer's investigations were ongoing. Slip op. at 2.

To justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights.... the [employer's] generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees’ Section 7 rights. Rather, in order to minimize the impact on Section 7 rights, it was the [employer's] burden “to first determine whether in any give[n] investigation witnesses need[ed] 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 [employer's] blanket approach clearly failed to meet those requirements. 

Ibid. The decision is available here on the NRLB's web site.