NLRB attacks employer’s right to keep investigation confidential

published in Oklahoma Employment Law Letter | September 1, 2012

By Charles S. Plumb

Recently, the National Labor Relations Board (NLRB) has become more aggressive in its stance on employee rights. This trend has included taking an expanded position on what constitutes protected activity by employees who work for nonunionized employers. A July 30 NLRB decision not only continues that expansion but also threatens your ability to conduct confidential investigations of workplace complaints.

No steam to sterilize

James Navarro worked as a sterile processing technician at Banner Estrella Medical Center in Phoenix, Arizona. Sterile processing technicians are responsible for the care and handling (including sterilization) of all surgical instruments.

To sterilize labor and delivery instruments, the hospital uses an autoclave, a large steam sterilizer. When Navarro reported for work on February 19, 2011, he learned that the autoclave wasn’t working because of a broken steam pipe. The hospital also has a STERRAD machine, which uses low temperatures and hydrogen peroxide to sterilize instruments. With the autoclave out of commission, Navarro’s supervisor directed him to use the STERRAD machine and hot water from the coffee machine in the hospital’s break room to sterilize labor and delivery instruments.

Navarro researched whether the STERRAD machine and hot water from a coffee machine could be used for surgical sterilization. He didn’t use the machine as instructed and instead expressed concern about following the sterilization procedure suggested by his supervisor. His supervisor confronted him and accused him of insubordination and refusing to follow instructions. At that point, Navarro met with JoAnne Odell, an HR rep, explained the facts, and complained that he was concerned about his job.

In the meantime, Navarro’s supervisor met with the director of postoperative services, advocating that Navarro be disciplined for refusing his instructions to sterilize the instruments. Odell advised against discipline. Rather than being disciplined, Navarro received a “coaching memorandum.”

A few days later, Navarro’s supervisor gave him his yearly performance evaluation. Although he evaluated his performance as satisfactory, he rated his behavior as unsatisfactory. As a result of Odell’s investigation into Navarro’s complaint and at the HR representative’s urging, Navarro’s supervisor revised the annual performance evaluation to rate Navarro as satisfactory, and the coaching memorandum was removed from his personnel file.

Hospital’s investigation of Navarro’s complaint

All employees ? whether in a unionized or nonunionized workplace ? have the legal right to participate in concerted activities. That can include discussing the terms and conditions of their employment with coworkers or their likes and dislikes about the employer or their supervisors. Like most employers, when Banner Estrella Medical Center looks into employees’ complaints, it asks employees making complaints not to discuss the matter with coworkers while the investigation is ongoing. There’s a good reason for that request: It protects the integrity of the investigation and reduces the possibility of retaliation or interference with getting a full and accurate view of the facts.

That’s what Odell did when looking into Navarro’s complaint. She asked him not to discuss his complaint with coworkers so she could fairly and thoroughly investigate what happened. However, the NLRB found that trying to keep Navarro from discussing his complaint with other employees unlawfully interfered with his right to talk with coworkers and engage in concerted activities. Banner Health System and James A. Navarro, 28-CA-023438 (NLRB, 7/30/12).

Potential danger of the NLRB’s ruling

If the NLRB continues down this path and takes this position in future cases, employers could find themselves in an untenable catch-22. You are obligated to conduct fair and thorough investigations of employee complaints, and the accuracy and quality of your investigations can be affected when employees openly discuss an investigation as it progresses. Yet the NLRB seems to take the position that an effort by an employer to maintain the confidentiality and integrity of an investigation may leave the employer open to a charge that it unlawfully infringed upon employees’ right to participate in concerted activities.