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National Labor Relations Board Rules on Employer’ Interests in Maintaining Confidentiality of Internal Investigations

Volume 1, Issue 10
October 6, 2002

Board Finds that Employee's Discussion of Employer's Handling of Sexual Harassment Complaints Is Protected and Concerted Activity

In a recent decision, the National Labor Relations Board ("NLRB") has struck down an employer rule prohibiting employees from discussing a sexual harassment complaint among themselves. In 1996, an employee of the Phoenix Transit System, Charles Weigand, had brought forth complaints of offensive conduct by a supervisor. Management had instructed Weigand and other employees not to discuss any allegations, as they were to remain confidential during the pendency of the investigation. Though management concluded the investigation, and the supervisor was reprimanded, the results of the investigation were never made known to the complaining parties. In April 1998, Weigand, also a union officer, published statements in the union newspaper criticizing the employer's handling of his harassment complaint. He was subsequently fired for violating the instructions not to discuss the details of his complaint, and for issuing a "verbal assault" against a supervisor, in violation of company policy.

In upholding an Administrative Law Judge's decision, the NLRB held Weigand's termination to be unlawful. In particular, the Board noted that the investigation of alleged improper conduct had in fact concluded two (2) years prior to Weigand's published statements, and as such, the employer did not have a significant interest in maintaining confidentiality. As a result, the employer's interest did not outweigh Weigand's protected right to discuss the company's handling of sexual harassment complaints.

The case is similar to the one of Caesar's Palace, a September 2001 decision in which KZ&A represented the employer. In Caesar's Palace, the employer was found not to have violated the National Labor Relations Act by enforcing a confidentiality rule during an ongoing investigation of alleged illegal drug activity, because the rule was intended to ensure that witnesses were not put in danger and that testimony was not fabricated. In Phoenix Transit System, the Board has decided that the employer's interest in maintaining confidentiality of investigations dissipates once the investigation has been concluded. Accordingly, employers should be cognizant that any confidentiality rule should apply only during the pendency of an investigation, and following the investigation's conclusion, employees are free to discuss the details of the investigation among themselves.

Phoenix Transit System, 337 N.L.R.B. No. 78 (May 10, 2002).

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