The Continuing Regulatory Attack on an Employer's Ability to Conduct Internal Investigations

As I've commented before, federal employment and labor regulatory agencies have been working overtime in the last several years to limit the rights of employers in a variety of settings, and perhaps in no area more than the conduct of internal investigations.

In the latest attack on an employer’s ability to run internal investigations as it sees fit, the NLRB overturned decades of precedent and now requires employers to provide unions with confidential witness statements taken during the course of a disciplinary investigation. Of course, the Obama Board members are fully aware of the chilling affect their decision will have on an employer’s ability to find out what happened in policing its own workplace. In particular, in grievance arbitrations (which  is what this decision pertains to), pre-hearing production of witness statements is likely to diminish rather than bolster the integrity of the grievance and arbitration process because of the potential for witness coercion and intimidation by union co-workers. Moreover, once witnesses being interviewed by the employer understand that the employer will be required to provide their names and statements to the union prior to the hearing, it would not be unusual for witnesses to simply to refuse to make such a statement or to talk to the employer.

The danger of witness intimidation or coercion is not fanciful --- in fact, the Board has long protected statements from witnesses that it collects in an unfair labor practice proceedings, shielding those statements from the employer until the witness actually testifies. Why this same protection should not be extended to employers' witnesses at grievance proceedings is unclear from the Board’s opinion.

Nevertheless, union employers seeking to arbitrate grievance proceedings must now factor into their process that they cannot guarantee witnesses confidentiality prior to the hearing.

The Board’s decision makes it much more difficult for employers now charged with protecting employees and avoiding liability by maintaining workplace safety and identifying and addressing workplace violence, bullying, or sexual or racial harassment.  Revealing witnesses' names and statements to co-workers will likely reduce candid, truthful statements from potential witnesses. Coupled with EEOC’s determination in that a blanket policy prohibiting witnesses from talking to other employees during the pendency of an investigation is per se retaliatory, this NLRB decision further erodes an employer’s ability to talk frankly with its work force to ferret out and correct employee misconduct.

UPDATE:  This decision, along with numerous others, apparently has now been invalidated (pending appeal) by the DC Court of Appeals opinion referenced here.

An Important NLRA Decision From DC

A federal district court judge, in what is likely the opening round of a challenge that could go all the way to the Supreme Court, today significantly limited the NLRB's requirement that employers post a prounion notice, both physically in their workplaces and on websites used by their employees. The decision is important for all employers to review, because although the court did not preclude the NLRB from requiring the notice to be posted, it did limit the NLRB's ability to enforce a posting requirement via the unfair labor practice process.

A quick review of the circumstances: on August 30, 2011, the NLRB published a Final Rule, requiring all employers subject to the National Labor Relations Act (i.e., the majority of employers in the US) to post a notice, drafted by the Board, outlining employee collective bargaining rights under the National Labor Relations Act.  The required notice specifically listed the rights employees had to join a union, bargain collectively, organize a union, discuss wages, benefits and union organizing, take action with one or more coworkers to improve working conditions, strike and picket, or choose not to do any of these activities. Most employers who were paying attention reacted immediately to what, on its face, appeared to be a very prounion posting requirement coming out of a supposedly neutral government agency. The Final Rule went on to say that any failure to post this notice could be found to interfere with, restrain, or coerce employees in the exercise of their NLRA rights. Finally, the Board noted that it could toll the statutory six-month statute of limitations for any unfair labor practice charge if the employer failed to post a notice properly and that the Board would consider a knowing and willful refusal to comply with the requirement to post a notice as evidence of unlawful motive, where applicable.

In deciding the case, the judge made several key determinations. As an initial matter, she determined that the NLRB was authorized to promulgate a posting requirement, given that the Board was established to deal with labor management relations and the posting related directly to that purpose. No surprise here, and I'm wondering why the employer groups opposing the notice requirement even bothered to argue this. The judge also determined that the Board's action was not arbitrary or capricious under the appropriate standard. Again, no surprise at the result--the Board was within its area of expertise when it determined that many employees are unaware of their NLRA rights and that the notice posting rule was a reasonable means of promoting awareness.

Where things started to go off track for the Board, however, was in the judge's analysis of the Board's presumption that it could arbitrarily determine that a failure to post a notice was the same thing as actually interfering with an employee's exercise of her rights under the NLRA. The court determined that "to interfere" means to actively get in the way, i.e. doing something impeding or hampering an employee's exercise of rights guaranteed by the NLRA. "It [the NLRA] does not prohibit a mere failure to facilitate the exercise of those rights." Under this straightforward reading of the law, the judge found that the Board could not simply determine that a failure to post the notice, in and of itself, interfered with anything. Rather, the judge ruled that the if the Board wanted to prove an unfair labor practice charge for failure to post, it must make a specific finding in each individual case that an employer's action interfered with the exercise of a protected right.

This might sound like a fine distinction, but in actuality, it's crucial. Instead of being able to assume that a failure to post prevents employees from exercising their rights to organize, the Board must now produce specific evidence that someone, somehow was prevented from organizing, talking about wages, etc. as a result of the poster not being in the workplace. That's a significantly harder burden for the Board to carry at a hearing.

Moreover, the judge also determined that the Board could not freeze the statute of limitations and keep it from expiring in cases where there was no posting, without making a showing that the failure to post somehow actually delayed an employee's filing a charge under the NLRA. The Board' argument that it could unilaterally prevent the statue limitations from running, as the court noted, "turns the burden of proof on its head."

In the end, employers are left with this-you will still have to post the notice, and in the form that the Board requires. But before you can be penalized for not doing so, the Board is going to have to produce credible evidence that your workforce was prevented from engaging in protected activity by your failure to put the notice up.  And your failure to post a notice cannot automatically extend the timeframe in which employees can file valid charges with the Board, absent a showing that a delay actually happened. Both of these are good things.

If the government appeals, this will get interesting.  I expect that the DC Court of Appeals would uphold most, if not all of the lower court's findings, and might actually expand them.  So the government may not wish to push its luck any further.