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NLRB issues ruling on investigation confidentiality

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NLRB

In another move that overturns an Obama-era decision, the National Labor Relations Board has ruled employers may issue blanket rules ordering workers to keep investigations confidential.

Last week’s 2-1 ruling in Apogee Retail LLC d/b/a Unique Thrift Store was issued the same day the board overturned another Obama-era ruling in holding employees cannot use employer-owned email systems for union-related or other concerted activity.

The latest ruling on the issue of confidentiality overturns the NLRB’s  2012 Banner Estrella decision, which said employers must determine on a case by case basis “whether its interests in preserving the integrity of an investigation outweighed presumptive employee Section 7 rights,” according to the decision. Section 7 of the National Labor Relations Act gives union and nonunion workers the right to engage in concerted activities.

The Apogee ruling involved the policy of Apogee, a Bellevue, Washington-based retail chain that sells second-hand clothing and other items. The case was remanded to the region level for further proceedings.

The NLRB Republican majority said the board’s 2012 ruling had failed to consider U.S. Supreme Court and board precedent in recognizing “the board’s duty to balance an employer’s legitimate business justifications  and employees’ Section 7 rights,” as well as the “importance of confidentiality assurances to both employers and employees during an ongoing investigation,” among other reasons provided for its ruling.

The board’s sole Democratic Board member, Lauren McFerran, dissented from the ruling, as she did from the board’s email systems ruling. 

Her dissent said the Apogee ruling “now permits American employers to hold gag rules over their workers if the rule is linked to an open investigation of workplace misconduct,” which will likely have a chilling effect on workers.

Ms. McFerran’s term on the board expired the same day the rulings were issued, which leaves two vacant seats on the five-person board. Her replacement to the board has not been announced by the NLRB.

 

 

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