First it was your social media policies. Then it was your at-will doctrine. And now the National Labor Relations Board wants to stick its nose into your workplace investigations.
That’s the outcome of a recent NLRB ruling, which declared that a medical facility violated labor law when an HR staffer asked an employee involved in an internal investigation not to discuss the case with their co-workers.
Here’s what happened: Medical technician James Navarro refused a supervisor’s order to sterilize surgical instruments with hot water from a coffee machine when the hospital’s steam system was broken. Navarro claimed the improvised sterilization method could endanger patients.
The hospital’s HR department investigated Navarro’s actions concerning the sterilization incident, and he was disciplined for insubordination.
Navarro filed an unfair labor practice charge against the hospital, saying the HR rep, JoAnn Odell, asked him not to discuss the investigation with his co-workers.
Navarro claimed that request — even though it didn’t threaten any consequences if he didn’t comply — violated his right to discuss workplace conditions with other workers.
The request was apparently standard procedure when complaints were under investigation; the company cited its concern for maintaining the “integrity” of the inquiry as the basis for the practice.
‘Blanket approach’ was improper
An administrative law judge sided with the employer. But the board overruled the ALJ decision, saying the company’s “blanket approach” to the issue was overbroad.
The board pointed to the employer’s standard Interview of Complainant Form, which contained the request that the employee involved didn’t discuss the case with other workers. Odell testified that she didn’t always instruct the employees not to discuss their case, but she “frequently” did so.
That practice, the board said, had “a reasonable tendency to coerce employees” into refraining from holding the discussions of workplace issues that are protected under the National Labor Relations Act.
Instead, the board ruled, it was up to the employer to examine each complaint on a case-by-case basis to “determine whether in any given investigation witnesses needed protection, evidence was in danger of being fabricated, or there was a need to prevent a cover-up.”
The full board decision is Banner Health System d/b/a Banner Estrella Medical Center & James Navarro.