In Banner Estrella Medical Center, the Board held that the practice of instructing or even asking employee witnesses to an investigation not to discuss the matter with others until the investigation was complete violated section 7 of the Act.2 The Board disregarded the employer’s stated concern for the “integrity of its investigations,” noting that such a concern was “insufficient to outweigh employees’ section 7 rights.”3

Then, in 2019,4 the Board overruled Banner Estrella and upheld an employer’s rule requiring employees who participate in an employment investigation to keep confidential any information pertinent to that open investigation as lawful under the Boeing test. For details on the Boeing test, see Balancing of Protected Rights and Employer Justifications.

In 2023, the Board overruled its 2019 decision and rejected the principle that investigative-confidentiality rules are always lawful to maintain.5 The Board instead decided that such a rule must be assessed under the new Stericycle, Inc. standard in which a work rule is unlawful if it has a reasonable tendency to chill employees from exercising their rights guaranteed by the Act. For details on the Stericycle test, see Balancing of Protected Rights and Employer Justifications.

The Biden Board extended this holding to oral confidentiality instructions issues pursuant to a specific investigation, as long as employees would have reasonably understood that confidentiality was required only for the duration of the investigation.6 However, the Board has recently noted that such oral confidentiality rules must be interpreted under the Stericyle test. Therefore, the law in this area may change soon.

In Piedmont Gardens, the Board held that an employer violated sections 8(a)(1) and (5) of the Act when it failed to provide the union with the names, job titles, and/or written statements of three individuals who purportedly witnessed an employee engage in the misconduct that led to the employee’s termination.7

The Board noted that if an employer objects to providing witness statements on confidentiality grounds, “the Board balances the union’s need for the relevant information against any legitimate and substantial confidentiality interests established by the employer.” Piedmont Gardens overruled the decades-old decision in Anheuser-Busch, which had held that written statements by employee witnesses are exempt from disclosure.8 This case, too, is mentioned in the General Counsel’s Memorandum GC 18-02 as one that could be reconsidered by the Board in a future case.

• Employers who have questions regarding confidentiality instructions during workplace investigations should seek the advice of counsel.

Conversely, the U.S. Supreme Court, in NLRB v. J. Weingarten Inc., held long ago that union-represented employees have a right to request a union representative to be present during “investigatory interviews.”9 Investigatory interviews include meetings in which supervisors question employees to obtain information that could be used as a basis for discipline — or in which they ask employees to defend their conduct.

If employees reasonably believe that discipline or other adverse consequences may result from what they say, they have “Weingarten rights” to demand union representation. Union representatives are not limited to observation. They can assist and counsel employees during the meeting. Employers are not required to advise the employee of this right in advance. The right to a union representative applies only to investigatory meetings, not to meetings in which a decision about a disciplinary matter is being communicated.

To exercise their Weingarten rights, employees must make a clear request for representation before or during the interview. After an employee makes the request, employers have three options:

• Grant the request and delay questioning until the representative or coworker arrives and has the chance to consult privately with the employee.
• Deny the request and end the interview immediately.
• Give the employee a choice of having the interview without representation or ending the interview.

Employers cannot punish an employee for making this request. Weingarten rights apply only in unionized workplaces.

1. NC-DSH, LLP d/b/a Desert Springs Hospital Medical Center, 1824 (2016)