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Tuesday, July 30, 2013

Harder to Get Employees to Keep a Secret

In August 2012, the Boeing Company disciplined Joanna Gamble for communicating with coworkers about a recently completed human resources (HR) investigation into Gamble’s allegations against her supervisor.  She complained that the supervisor had referred to the mostly-female tool box meeting as a “bitch” session; and that he had used the word “bitch” when referring to two female employees, who he said reminded him of his ex-wife.

Boeing justified discipling Gamble by claiming that she had violated a confidentiality notice she had signed during the investigation, which specifically “directed” witnesses “not to discuss the case with any Boeing employee other than the investigators or the witness’ union representative, if applicable.” Gamble was not a member of the union.

Gamble responded by filing an unfair labor practice (ULP) charge with the NLRB alleging that the discipline unlawfully interfered with her statutory right under the National Labor Relations Act (NLRA) to discuss the terms and conditions of her employment with her coworkers. The case was assigned to an Administrative Law Judge.

Boeing admitted during the hearing that it routinely gave this same confidentiality notice to employee witnesses during HR investigations and that the notice was “effectively a rule of conduct.” The NLRB General Counsel charged that Board law is clear that such blanket confidentiality directives impermissibly infringe on employees’ statutory right to discuss among themselves their terms and conditions of employment and otherwise engage in concerted protected activity.

On July 26, 2013 the ALJ agreed holding that the notice would have a reasonable tendency to chill employees from exercising their statutory rights and likewise engaged in unfair labor practices under the NLRA. The ALJ held that Boeing had unlawfully disciplined Gamble.

Common Sense Counsel: There is currently a very thin NLRB line to walk when conducting an internal workplace misconduct investigation. Professional guidance can be most helpful to achieving a good outcome and avoid violating the law. Below is guidance language from the NLRB General Counsel that should be in forms:

The Company has a compelling interest in protecting the integrity of its investigations. In every investigation, the Company has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. The Company may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation in strict confidence. If the Company reasonably imposes such a requirement and you are involved in the investigation and you do not maintain such confidentiality, you may be subject to disciplinary action up to and including immediate termination

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Workplace Blog
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