NLRB Reiterates Rules on Investigation Confidentiality

A recent NLRB decision caused some ripples around the web, and I am a little bit surprised by the commotion.  The decision appears to have been a fairly straight forward reiteration of precedent that is at least a decade old.

The decision is Banner Estrella Medical Center, 358 NLRB No. 93 (2012). The cause of the controversy is the Board's ruling that the employer violated the NLRA through a policy that prohibited employee discussions about matters the employer was investigating.  After an employee made a complaint to the employer--pursuant to the employer's blanket policy--he was then forbidden from discussing the subject of the complaint with other employees.  Citing a similar decision it made last year in Hyundai America Shipping Agency, 357 NLRB No. 80, slip op. at 15 (2011), the Board stated

To justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights.

This seems very similar to the Board's reasoning in Caesar’s Palace, 336 NLRB 271, 272 (2001)

The issue is whether the interests of the Respondent’s employees in discussing this aspect of their terms and conditions of employment outweighs the Respondent’s asserted legitimate and substantial business justifications.

In Caesar's Palace, the employer required silence among employees about an ongoing drug-investigation.  The Board held that the employer's interest in a safe investigation outweighed the employees' interest in discussing a workplace condition. 

In Phoenix Transit Systems, 337 NLRB 510 (2002), the Board found that the employer violated the NLRA by maintaining a confidentiality rule which prohibited employees from discussing their sexual harassment complaints among themselves.

In Hyundai America Shipping Agency, 357 NLRB No. 80, slip op. at 15 (2011) where managers "routinely instruct[ed] employees involved in investigations not to talk with other employees about the substance of those investigations", the employer's policy was considered unlawful.




Nothing then is surprising about the Board's conclusion in Banner Estrella where the employer had a blanket policy of instructing employees to refrain from discussing the subject matter of complaints while they were being investigated.


And the underlying principle hardly seems controversial. These are the main points as I see them:
1. Under Section 7 employees have the right to discuss terms and conditions of employment.
2. The terms and conditions of employment that employees have the right to discuss include issues such as whether a manager is sexually harassing an employee(s) and whether certain employees are being treated differently than other employees.
3. Employers will at times seek to investigate controversies surrounding the terms and conditions of employment.
4. If employers tell employees that they may not discuss the controversies while they are being investigated, they have necessarily infringed on the employees' Section 7 rights.
5. Any infringement on Section 7 rights must be justified.
6. Some workplace controversies require a high need of confidentiality to protect the employers' interests and the witnesses' interest. For instance an employer investigating a drug ring in its facility has an interest in protecting its witnesses from criminal retribution.
7. Some workplace controversies do not require a high degree of confidentiality to protect an employer's or witnesses' interest.  For example an employer investigating a matter that is mostly documented through email or caught on surveillance footage may not fear the effects of collusion as much as in purely "he said, she said" investigations.
8. Requiring employees to refrain from speaking to other employees about the subject of an investigation may work against the employees' interests because it may stop them from obtaining helpful information or generating a concerted protest.
9. Some balancing of the competing interests must be taken into consideration before stopping employees from discussing workplace conditions.

Braun Drug Testing and Industrial Due Process

Yahoo news and Slate have coverage and commentary on an arbitration panel's decision to overturn the 50 game suspension of National League MVP Ryan Braun.  Braun had been suspended for testing positive for synthetic testosterone.  Braun--who maintains his innocence--with the MLB Players Association, fought the suspension on the grounds of the chain of custody provisions of nonadherence to the league's and players' Joint Drug Prevention and Treatment Program.

Braun's urine sample had been collected on a Saturday night and not sent to the testing lab until Monday.

 Article X of the Joint Program, Integrity of the Specimen, lays out a very detailed process on how the testing process works. At Section V., it provides,

7. The Collector shall check the “FedEx” box in the section entitled “Specimen Bottles(s) Released to:” Absent unusual circumstances, the specimens should be sent by FedEx to the Laboratory on the same day they are collected. [Emphasis supplied].

Although the arbitration decision has not been published, by looking at Article X it's pretty clear where at least some of the battle lines were drawn.

The decision is stirring up dismay and controversy among baseball fans, but it stands as a good illustration of "industrial due process" and a good reminder for those of us in labor and employment law that there is no substitute for a close reading of a contract.

Lent, Catholicism, Religious Accommodations

Jesus goes into the desert for 40 days and 40 nights

It's Ash Wednesday, the beginning of Lent, and I have been wondering about where the courts and agencies have come down on Catholic employees' requests for religious accommodations.  Lent has several days which are very important to Catholics: Ash Wednesday, Holy Thursday and Good Friday (additionally the feast days of St. Joseph and St. Patrick fall within Lent). Although these days are not holy days of obligation, Catholics have sincere beliefs about how to observe them. Is there much guidance regarding their requests to shift schedules to observe these days?  Additionally, Catholics are called to personal acts of penance during Lent. Is there any guidance for requests to accommodate these?

 I have been looking for some kind of guidance specifically tailored to Catholic employees, a kind of "how to" on seeking religious accommodation that would list all the ways a Catholic employee might want to be accommodated and case law and guidance on what results he might expect. If someone knows of something like this, please drop a comment or send me an email.  If someone is interested in creating one, please send me an email, I would love to work on that project.  In the meantime, I have spent a little time hunting around to compile a list of Catholic accommodation decisions:

Good Friday

 1. The Equal Employment Opportunity Commission's (EEOC) Compliance Manual states under Example 3 , "A Catholic employee requests a schedule change so that he can attend church services on Good Friday...[this and other] accommodation requests relate to a “religious” belief or practice within the meaning of Title VII."  Unfortunately, the guide does not cite a Catholic employee related case for this proposition, but it is probably referring to 2.

2. Edwin Cardona and Felipe Borrero v. U.S. Postal Service, EEOC Appeal Nos. 01882012, 01882013, via 1990-MAR Army Law. 53, *54 (Oct. 11, 1989). The Postal Service failed to reasonably accommodate the religious practices of Catholic employees where it allowed them to take only five hours of leave on Good Friday, while allowing Jewish employees to take a full day, "the agency's justification for the different treatment was based on its interpretation of Catholic cannon law, which did not require more than two hours of church attendance on Good Friday, and Jewish law, which forbade work on holy days. The EEOC held that an agency had no authority to interpret religious laws or evaluate the sincerity of an individual's religious practices in developing its policy on religious accommodation."

3. Bronx Lebanon Hospital Center (1973 Arbitration decision) via 48-DEC Disp. Resol. J. 54, 59 "the arbitrator upheld the hospital's right to discipline a Roman Catholic employee for refusing to work on Good Friday since church law did not prohibit an employee from working on that day. Citing the many church services that are held in the evening in that community to accommodate the religious needs of working people and the statement of the hospital's Roman Catholic chaplain that Catholics may work on Good Friday, the arbitrator concluded that the grievant's decision not to work that day was more a matter of religious preference as opposed to an obligation that warranted protection under the contract's nondiscrimination provision."

4. NLRB v. Sauk Valley Mfg. Co., Inc., 486 F.2d 1127, (C.A.9, 1973) The NLRB conducted an election on Holy Thursday and Good Friday, but the results were not overturned.

Holy Days of Obligation and Sabbath

5.  Pielech v. Massasoit Greyhound, Inc., 668 N.E.2d 1298 (Mass.,1996). This was a procedurally complicated case where two Catholic racetrack employees were not allowed to take off Christmas. The case decided under Massachusetts law rather than Title VII and that law was struck down as unconstitutional.

6. Salisbury v. Potter, 2010 WL 128642, (N.D.Ill., 2010).  A Postal employee whose practice was to attend mass on Saturday evenings did not suffer an adverse action when forced to work Saturdays because he had opportunity to attend on Sunday.

7. Felix v. Baxter Healthcare Corp., Not Reported in F.Supp.2d WL 3245368, (C.D.Cal., 2010) Employer attempted to accommodate employee's request to not work Sundays, but employee did not follow up on employer's suggestions.

Personal Actions

8. Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995) Catholic employee opposed to abortion wore a button and a T-shirt with photographs of a fetus. Other employees complained, the employer told her to stop wearing the shirt, and when she refused it fired her. The court held that the plaintiff's religious beliefs did not require her to wear the button in front of other employees. For commentary see 22 Harv. J.L. & Pub. Pol'y 959, 979. 

9. Tiano v. Dillard Dep't Stores, 139 F.3d 679 (9th Cir. 1998) Catholic employee's religious pilgrimage to Medjugorje, Yugoslavia was a personal preference because the employee's Catholic faith did not require that the pilgrimage be made during the employer's busiest season.

10. Several resources state without citation that there is a case where an employee's "Old Catholic" belief that she had to keep her head covered at all times was held to be protected.

11. EEOC v. AFSCME, 937 F.Supp. 166 (N.D.N.Y.1996) A Catholic employee who opposed capital punishment and abortion but who had to pay agency fee to Union was reasonably accommodated by the Union allowing the Catholic employee to donate to a charity instead.

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Update: Thanks to Ann Kiernan for posting on and linking to this and to Jon Hyman for including it in his invaluable What I Read This Week post.

Plaza Auto Redux

Last November, I posted about an animation of Plaza Auto, 355 NLRB No. 85 (2010) . It's a case that illustrates both protected concerted activity and the leeway that is sometimes given to employees when they say or do impertinent things while engaging in protected concerted activity. The employee in the case was a car salesman who was fired after he raised various concerns on behalf of himself and other employees including complaints about whether the employer was paying the salesmen minimum wage, whether the employer was padding vehicle costs (which cut into commissions), breaks, and access to bathrooms.  During a meeting with his boss, the employee raised some of these concerns and was told in so many words that he was free to quit. At that point, the employee let loose a torrent of words. The Board determined that the employee had been engaged in protected concerted activity and had to determine whether the employee lost the protection of the Act by going overboard with his words during the meeting.  The Board applied its Atlantic Steel doctrine and determined that he had not lost the protection of the Act and that his discharge was unlawful.  Today, the Ninth Circuit took issue with Board's reasoning with regard to one of the four Atlantic Steel factors, nature of the outburst (the others are place of the discussion, subject matter of the discussion; and whether the outburst was provoked by the employer's unfair labor practice), and remanded the decision to the Board for further analysis.

Link to the Board decision here

Here's my animation:



This animation is just a rough imagining of the situation as depicted in the case. Some of the language is from the case, but not all of the language is taken from the case. Artistic liberty and technical limitations abound.

Blessed Adolph Kolping

From http://en.wikipedia.org/wiki/Adolph_Kolping

For Catholics, today is the feast Day of the Blessed Adolph Kolping, a German priest who ministered to workmen in the Industrial Revolution and founded the Young Workman's Society (Kolping Society). The Kolping Society, whose 450,000 members are spread over 60 countries, emphasizes the sanctification of family life and the dignity of labor.

The son of a shepherd, at a young age, Kolping moved from the countryside to industrial Cologne, Germany. There he worked as a shoemaker's assistant and learned firsthand about the brutal effects of the Industrial Revolution on the lives of the young men that filled German factories.  He made it his life's work to better their lives and deepen their faith.  The keystone of Kolping's ministry was beginning the Gesellenvereine (young workman's societies) that quickly spread around the world. Nine years after founding the first, there were 400 branches. The society today describes itself this way:

The International Kolping Society is a catholic social organization founded by Adolph Kolping. The members create a family-like and life accompanying community. The International Kolping Society promotes through education and activities the development of its members in many fields of the daily life. It consists of local Kolping families which form diocesan or regional organizations and National Kolping Societies. 

There are some 5000 Kolping families today.  Key to the organization's ultimate success was Koliping's ability to unite the isolated and fragmented workmen of his time. During the homily of Kolping's beatification mass, the Blessed Pope John Paul, II said:

Adolph Kolping gathered skilled workers and factory laborers together. Thus he overcame their isolation and defeatism. A faith society gave them the strength to go out into their everyday lives as Christ’s witnesses before God and the world. To come together, to become strengthened in the assembly, and thus to scatter again is and still remains our duty today. We are not Christians for ourselves alone, but always for others too.

New revolutions in technology are changing our work and our lives today. In these times, Blessed Adolph Kolping, pray for us.