On December 16, 2019, the National Labor Relations Board (NLRB) overruled its prior decision in Banner Health System, 362 NLRB 1108 (2015), which held that a “blanket” instruction to employees to maintain confidentiality during a workplace investigation violated Section 7 of the National Labor Relations Act. In Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), the NLRB held that work rules requiring confidentiality during the course of workplace investigations are presumptively lawful. According to a press release, the NLRB found that Banner Health “improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed employee Section 7 rights, contrary to both Supreme Court and Board precedent.” The NLRB held that the new standard set forth in Apogee “better aligned with other federal guidance, including EEOC enforcement guidance.”
Impact on California Public Sector
A day after this decision, in Caesars Entertainment, the NLRB overruled its prior decision in Purple Communications. I recently wrote that Caesars Entertainment should have no impact on the California public sector because PERB adopted a “heightened” version of Purple Communications based on the language of California statutes. It’s not so clear when it comes to Banner Health.
PERB expressly adopted Banner Health in Los Angeles Community College District (2014) PERB Decision No. 2404-E. In that decision, although PERB cited to the general principle that broad, vague directives that might chill lawful speech are disfavored, it relied heavily on the NLRB’s decision in Banner Health for its holding. Most recently, in County of Santa Clara (2018) PERB Decision No. 2613-M, PERB affirmed that its decision in Los Angeles Community College District relied on the NLRB’s rationale in Banner Health. (County of Santa Clara, p. 10.) Notably, in contrast to its adoption of Purple Communication, PERB did not rely on any statutory language unique to California.
That said, I do not anticipate any significant change to PERB’s holding in Los Angeles Community College District or County of Santa Clara. But now that Banner Health has been overruled, in my opinion it at least opens the door to arguments that certain restrictions are justified. For example, the restriction in Apogee Retail was fairly narrow: it only prohibited participants from discussing the actual investigation and contents of the interviews conducted in the course of the investigation; it did not prohibit participants from otherwise discussing the underlying incident. In contrast, in County of Santa Clara, the employee was prohibited from discussing the incident in its entirety, which PERB noted would hamper the employee’s ability to talk to witnesses in order to prepare a defense. I believe there is a good argument that even under Los Angeles Community College District and County of Santa Clara, the narrow restriction given in Apogee Retail would be permissible.