Banner Estrella Medical Center

National Labor Relations Board - Board Decisions

Jun 26, 2015

362 NLRB No. 137 (N.L.R.B. 2015)

362 NLRB No. 137
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Banner Health System d/b/a Banner Estrella Medical
Center and James A. Navarro. Case 28–CA–
023438
June 26, 2015
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
On July 30, 2012, the National Labor Relations Board
issued a Decision and Order in this proceeding, reported
at 358 NLRB No. 93. Thereafter, the Respondent filed a
petition for review in the United States Court of Appeals
for the District of Columbia Circuit, and the General
Counsel filed a cross-application for enforcement.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550, holding that the challenged appointments to
the Board were not valid. Thereafter, the court of ap-
peals vacated the Board’s Decision and Order, and re-
manded this proceeding to the Board for further proceed-
ings.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, above, we have considered de novo the
judge’s decision and the record in light of the exceptions,
cross-exceptions, and briefs.1 We have also considered
the now-vacated Decision and Order reported at 358
NLRB No. 93. We have decided to affirm the judge’s
rulings, findings,2 and conclusions as modified and to
adopt the recommended Order as modified and set forth
in full below.3

1 On October 31, 2011, Administrative Law Judge Jay R. Pollack is-
sued his decision. The Respondent filed exceptions and a supporting
brief. The General Counsel filed cross-exceptions, a supporting brief,
and an answering brief, and the Respondent filed an answering brief to
the cross-exceptions.
2 The parties have excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the judge’s findings.
3 The General Counsel has cross-excepted to the judge’s failure to
include in his recommended Order a provision that the notice to em-
ployees be posted on a corporatewide basis. We find merit to this
cross-exception. The record shows that the Respondent utilizes its
Confidentiality Agreement at all of its facilities. We have consistently
held that “where an employer’s overbroad rule is maintained as com-
1. We agree with the judge’s finding that the Respond-
ent did not violate Section 8(a)(1) of the Act by issuing a
“coaching” to technician James Navarro on February 21,
2011,4 for failing to follow the directions of a supervi-
sor.5 Navarro testified that prior to being disciplined, he
expressed concerns to supervisors and coworkers regard-
ing the manner in which he was being instructed to clean
obstetric and surgical instruments for use that day. Nor-
mal procedures could not be followed on the day in ques-
tion because of a broken steam pipe and lack of hot wa-
ter. Specifically, Navarro’s concern was that the proce-
dures that he was being directed to follow (including the
use of hot water from a breakroom coffee machine) were
not proper and could endanger patients. During the
course of his shift on February 19, and during part of his
shift the following day, Navarro refused to follow his
supervisor’s instructions, citing the concerns described
above. Based on that refusal, the Respondent issued Na-
varro a coaching. The judge concluded that the coaching
was not unlawful. The judge relied on his finding that
the Respondent issued the coaching based on its belief
that Navarro was insubordinate and not because of any
protected concerted activity.
We agree with the judge’s finding that the Respondent
issued the coaching because it believed that Navarro had
engaged in insubordination by refusing to follow his su-
pervisor’s instructions, and not because of any protected
activity. Thus, even assuming that the General Counsel
established that Navarro’s protected activity was a moti-
vating factor in the coaching, we conclude that the Re-
spondent has met its burden of proving that it would have
taken the same action even in the absence of that protect-
ed activity. See Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.

panywide policy, we will generally order the employer to post an ap-
propriate notice at all of its facilities where the unlawful policy has
been or is in effect.” Guardsmark, LLC, 344 NLRB 809, 812 (2005),
enfd. in relevant part 475 F.3d 369, 372 (D.C. Cir. 2007). Accordingly,
we shall modify the recommended Order to provide that the notice be
posted at all facilities where the Respondent utilizes its confidentiality
agreement.
We shall also modify the recommended Order and notice to conform
to our findings regarding the Respondent’s prohibition of the discussion
of ongoing employee investigations, and we shall further modify the
notice in accordance with Durham School Services, 360 NLRB No. 85
(2014).
4 All dates hereafter are in 2011, unless otherwise noted.
5 The coaching was documented in writing on a form entitled “Per-
formance Recognition and Corrective Action Log” and was placed in
Navarro’s employment record. Several months later, in June, the Re-
spondent notified Navarro that the coaching had been removed from his
record.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). 6
2. The judge also found that the Respondent did not
violate Section 8(a)(1) when, on February 24, it gave
Navarro an annual performance review containing nega-
tive comments, based on complaints from his coworkers,
in a “behaviors” category. After Navarro objected to the
evaluation, it was revised and his rating in the “behav-
iors” category was changed to “fully meets expecta-
tions.” The judge found that the evaluation was com-
pleted before Navarro engaged in any protected concert-
ed activity and, therefore, could not have been an unlaw-
ful reprisal. We find no reason to reverse the judge’s
finding. In addition, because the revisions were favora-
ble to Navarro, we find no merit to the General Coun-
sel’s argument that the revised evaluation somehow vio-
lated Section 8(a)(1).7
3. Finally, contrary to the judge and our dissenting col-
league, we find that Human Resources Consultant JoAnn
Odell unlawfully requested employees who were in-
volved in a workplace investigation not to discuss the
matter with their coworkers while the investigation was
ongoing. Odell made these requests pursuant to an “In-
terview of Complainant” form bearing the title and logo
of the Respondent’s corporate parent, Banner Health
System. The form, which bears the subheading “Confi-
dential Investigation,” prescribes a standard “Introduc-
tion for all Interviews.” That introduction directs the
investigator to instruct all interviewees that “[t]his is a
confidential interview,” to explain that the investigator
“will keep [the] conversation confidential,” and to re-
quest the interviewee “not to discuss this with your
coworkers while this investigation is going on, for this
reason, when people are talking it is difficult to do a fair
investigation and separate facts from rumors.” The pre-
scribed introduction further directs the investigator to
inform the interviewee that the “[m]atter under investiga-
tion is serious, and the company has a commit-
ment/obligation to investigate this claim.” Finally, the
introductory language warns interviewees that “[a]ny
attempt to influence the outcome of the investigation . . .

6 Given our finding that the Respondent carried its Wright Line re-
buttal burden, we find it unnecessary to pass on the Board’s prior find-
ing that the General Counsel failed to establish that the Respondent had
knowledge of Navarro’s alleged protected concerted activity when it
disciplined him with the coaching. We also find it unnecessary to
determine whether Navarro was, in fact, insubordinate.
7 Because we affirm the judge’s finding that the Respondent com-
pleted the evaluation before Navarro engaged in any protected concert-
ed activity, we find it unnecessary to pass on the General Counsel’s
cross-exception to the judge’s refusal to admit into the record GC Exh.
11 (“Colleague Feedback Forms”), which contains positive assessments
of Navarro by his colleagues.
can be the basis for corrective action up to and including
termination.”
Odell acknowledged that in at least six investigations
during her 13 months of employment with the Respond-
ent she in fact requested confidentiality from interview-
ees pursuant to the “Interview of Complainant” form.
Odell testified that she made those requests based on the
type of investigation she was conducting. She identified
sexual harassment investigations as a common example,
but also acknowledged that she would request confiden-
tiality in other categories of investigations that might
present “sensitive situations,” such as investigations into
hostile work environment claims or allegations of abuse.
Odell did not claim, and there is no evidence, that she
made any individualized determinations that confidenti-
ality was necessary to maintain the integrity of any par-
ticular investigation or any particular interview.
On those facts, the judge found that the Respondent’s
maintenance and application of its policy to request con-
fidentiality in certain types of investigations did not vio-
late Section 8(a)(1). He reasoned that such requests were
made for the purpose of protecting the integrity of the
Respondent’s investigations. In the judge’s view, this
purpose constituted a legitimate business justification for
the policy, and so he found no violation of the Act. No-
tably, the judge did not appear to weigh the Respondent’s
general interest in the integrity of its investigations, how-
ever legitimate it might be, against employees’ equally
legitimate interest, grounded in their Section 7 rights, in
discussing workplace investigations potentially affecting
their terms and conditions of employment. Instead, the
judge apparently concluded that the Respondent’s inter-
est, because it was legitimate, necessarily outweighed
any interference with those rights. That was error.
Employees have a Section 7 right to discuss discipline
or ongoing disciplinary investigations involving them-
selves or coworkers. Such discussions are vital to em-
ployees’ ability to aid one another in addressing em-
ployment terms and conditions with their employer. See
generally Fresh & Easy Neighborhood Market, 361
NLRB No. 12, slip op. at 5–6 (2014). Accordingly, an
employer may restrict those discussions only where the
employer shows that it has a legitimate and substantial
business justification that outweighs employees’ Section
7 rights. Hyundai America Shipping Agency, 357 NLRB
No. 80, slip op. at 15 (2011). In Hyundai, the Board re-
affirmed that it is the employer’s “responsibility to first
determine whether in any given investigation witnesses
need protection, evidence is in danger of being de-
stroyed, testimony is in danger of being fabricated, and
there is a need to prevent a cover up. Only if the [em-
ployer] determines that such a corruption of its investi-
3
BANNER ESTRELLA MEDICAL CENTER
gation would likely occur without confidentiality is the
[employer] then free to prohibit its employees from
discussing these matters among themselves.” Id. Ap-
plying that standard, the Board found that the employer
unlawfully promulgated, maintained, and routinely en-
forced an oral rule prohibiting employees from discuss-
ing with other persons any matters under investigation by
its human resources department, without any individual-
ized preliminary review to determine whether such con-
fidentiality was objectively necessary. Id.
We reaffirm the standard applied in Hyundai. That
standard is rooted in well-established Board precedent,
and is not, as the dissent argues, an instance where the
Board is abdicating its responsibility to apply the Act to
the complexities of industrial life. Instead it fully and
fairly accommodates the competing interests at stake,
and it provides the Board—and employers—with struc-
tured guidance to deal with the wide variety of investiga-
tive situations that arise in today’s workplaces. We ad-
dress each of these points in turn.
First, the standard applied in Hyundai, as the Board
explained there, is grounded in a series of cases involv-
ing similar employer instructions to employees not to
discuss ongoing investigations. In Caesar’s Palace, 336
NLRB 271 (2001), the Board found that the employer
lawfully maintained and applied a confidentiality rule
during an ongoing investigation of allegations that em-
ployees and managers were engaged in illegal drug and
drug-related activity in the workplace, including threats
of violence. The Board emphasized that employees have
a Section 7 right to discuss discipline or disciplinary in-
vestigations involving fellow employees. The Board also
recognized that the employer’s instruction adversely af-
fected employees’ exercise of that right. Nevertheless, as
the Board explained, the employer had specific reasons
for its actions: “Because the investigation involved alle-
gations of a management coverup and possible manage-
ment retaliation, as well as threats of violence, the [em-
ployer’s] investigating officials sought to impose a con-
fidentiality rule to ensure that witnesses were not put in
danger, that evidence was not destroyed, and that testi-
mony was not fabricated.” Id. at 272. In those circum-
stances, the Board concluded not only that the employer
had established a “legitimate and substantial justifica-
tion” for its rule, but also that this justification out-
weighed the employees’ Section 7 right in the circum-
stances. Id.8

8 Significantly, although in Caesar’s Palace the Board found the
heightened risks presented there sufficient to justify the employer’s
demand for confidentiality, the Board did not hold that such grave
threats were necessary in all cases.
The Board reached a different conclusion in Phoenix
Transit Systems, 337 NLRB 510 (2002). In that case, the
Board found unlawful the employer’s maintenance and
enforcement of a confidentiality rule prohibiting employ-
ees from discussing their sexual harassment complaints
among themselves. Although the employer had promul-
gated the rule during a prior investigation of sexual har-
assment by a supervisor,9 the Board observed that the
employer had closed that investigation long before the
events then at issue. Id. at 510. Whatever need for con-
fidentiality the employer initially might have had, it had
long passed. In those circumstances, the Board found
that the employer’s maintenance of the rule was unlaw-
ful. Id. Notably, the Board distinguished the facts pre-
sented in that case from those presented in Caesar’s Pal-
ace, above, where, as described, the employer had pre-
sented an immediate, compelling need for confidentiali-
ty. Id.; see also Mobil Oil Exploration & Producing,
U.S., 325 NLRB 176, 178–179 (1997) (employer unlaw-
fully instructed employee to keep confidential employ-
er’s investigation of another employee where the latter
already was aware of the investigation).10
The standard applied in Hyundai plainly derives from,
and is fully consistent with, Caesar’s Palace and Phoe-
nix Transit Systems.11 Both of those cases make clear
that it is the employer’s burden to justify a prohibition on
employees discussing a particular ongoing investigation.
In addition, both cases demonstrate that the employer’s
burden comprises two related components. First, the
employer must proceed on a case-by-case basis. The
employer cannot reflexively impose confidentiality re-
quirements in all cases or in all cases of a particular type.
Second, a determination that confidentiality is necessary
in a particular case must be based on objectively reason-
able grounds for believing that the integrity of the inves-
tigation will be compromised without confidentiality.
These are the same requirements that the Board applied
in Hyundai. See 357 NLRB No. 80, slip op. at 15 (the
employer must show in each case that “corruption of its
investigation would likely occur without confidentiality”
(emphasis added)).
Second, we are persuaded that those requirements are
appropriate because they fully and fairly accommodate
the competing interests at stake: on one hand, employ-
ees’ Section 7 right to discuss potential discipline
(whether from the perspective of the employee facing

9 It does not appear that the lawfulness of the employer’s promulga-
tion of the rule was before the Board.
10 As in Caesar’s Palace itself, the Board again did not suggest that
Caesar’s Palace represented any kind of a threshold to finding employ-
er requests for confidentiality permissible.
11 Indeed, the judge in Hyundai relied on both cases.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
possible discipline or from that of his coworkers) and, on
the other hand, employers’ legitimate need for confiden-
tiality in certain circumstances to protect the integrity of
their workplace investigations. As illustrated by Hyun-
dai, Phoenix Transit Systems, and Caesar’s Palace, these
competing interests form the foundation of the Board’s
analysis of employer rules and instructions requiring
employees to keep investigations confidential. Further,
given that we are dealing with a statutory right guaran-
teed to employees, it is appropriate to place the burden
on the employer to demonstrate that some infringement
of that right is justified. As the Third Circuit explained
in the context of a rule prohibiting employees from dis-
cussing their wage rates, “[o]nce it is established that the
employer’s conduct adversely affects employees’ pro-
tected rights, the burden falls on the employer to demon-
strate ‘legitimate and substantial business justifications’
for his conduct.” Jeanette Corp. v. NLRB, 532 F.2d 916,
918 (3d Cir. 1976) (citations omitted). Moreover, as a
practical matter, the employer is best positioned to make
that showing because its knowledge of both the shop
floor and scope of the investigation allows it to weigh
whether confidentiality is justified in a particular in-
stance. And, as shown by Caesar’s Palace, where an
employer actually demonstrates objectively reasonable
grounds for believing that confidentiality is necessary to
protect the integrity of a particular investigation, the
Board has found that it lawfully may restrict disclosure.
Finally, the standard endorsed in Hyundai permits the
Board—and employers—to consider the relevant cir-
cumstances in particular cases as they arise. To be sure,
the Hyundai Board focused on situations in which “wit-
nesses need protection, evidence is in danger of being
destroyed, testimony is in danger of being fabricated,
and there is a need to prevent a cover up.” Neverthe-
less, we do not exclude the possibility that there may be
other comparably serious threats to the integrity of an
employer investigation that would be sufficient to justify
a confidentiality requirement. We need not speculate
today on what those threats might be, however, for in this
case the Respondent has not offered any legitimate and
substantial justification for Odell’s requests to employees
to keep investigations confidential.12
As described, the judge found that the Respondent’s
requests for confidentiality in certain types of investiga-
tions were justified generally by its concern over protect-
ing the integrity of those investigations. Contrary to the
judge, however, we find that the Respondent’s general-

12 We note, in particular, that there is no evidence that the Respond-
ent’s request for confidentiality was necessary to satisfy another statu-
tory mandate, which we recognize may be a consideration in other
cases.
ized concern was insufficient to outweigh employees’
Section 7 rights. Rather, it was the Respondent’s burden
to demonstrate that, in connection with a particular in-
vestigation, there was an objectively reasonable basis for
seeking confidentiality, such as where “witnesses need
protection, evidence is in danger of being destroyed, tes-
timony is in danger of being fabricated, or there is a need
to prevent a cover up.” Hyundai, supra, slip op. at 15.
The Respondent’s approach clearly failed to meet those
requirements. Accordingly, we find that the Respondent,
by maintaining and applying a policy of requesting em-
ployees not to discuss ongoing investigations of employ-
ee misconduct, violated Section 8(a)(1) of the Act.
In making that finding, we have given due considera-
tion to our dissenting colleague’s extended explication of
his views, but those views are unpersuasive. Initially,
much of the dissent rests on interpretations of the record
that simply cannot withstand scrutiny. The dissent in-
sists, for example, that Odell’s requests for confidentiali-
ty were never made routinely, but only “after an individ-
ualized inquiry regarding the need for non-disclosure in
relation to a particular interview during a particular in-
vestigation.” To the contrary, as discussed, Odell’s own
testimony establishes that she took a more categorical
approach, requesting confidentiality in any investigation
into alleged sexual harassment, hostile work environ-
ment claim, charge of abuse, or similar alleged miscon-
duct. At no point did Odell claim that she made any in-
dividualized determination that confidentiality was nec-
essary to protect the integrity of a particular investiga-
tion.13 Moreover, the fact that Odell made confidentiali-
ty requests in connection with at least six investigations
during her 13 months of employment with the Respond-
ent demonstrates that she sought confidentiality far more
frequently than the dissent suggests.
The dissent nevertheless maintains that, even if such
requests were made routinely, those requests were nar-
rowly tailored because they were only “requests,” were
applicable only while the investigation was ongoing,

13 To find that Odell did make such individualized determinations,
the dissent reads her testimony as indicating only that she “might” or
“may” request confidentiality in the types of investigations. The dis-
sent thus suggests, for example, that Odell may have requested confi-
dentiality in some sexual harassment investigations, but not other sexu-
al harassment investigations. In our view, when read as a whole, the
relevant testimony shows that Odell was giving examples of types of
investigations that, in her view, were the “more sensitive situations,”
Tr. 260, and thus warranted confidentiality requests, relative to other
types of investigations that did not.
In this respect, moreover, the record establishes that Odell—
pursuant to the instructions given by Banner Health System’s “Inter-
view of Complainant” form—did maintain a “policy” of requesting
confidentiality in certain categories of investigations.
5
BANNER ESTRELLA MEDICAL CENTER
were limited to the substance of an interviewee’s “con-
versation” with Odell, and were not accompanied by any
threat of discipline. As explained in the prior decision in
this case, the dissent’s reliance on the supposedly sug-
gestive nature of Odell’s request is misplaced.14 Like-
wise, we find unpersuasive the dissent’s emphasis on the
fact that Odell’s request for confidentiality may have
applied only while an investigation was ongoing. The
investigative period—before the Respondent had reached
any conclusions—would seem to be the period when
employees likely would be most interested in, and most
likely to benefit from, discussion with their coworkers
and union representatives.
Relatedly, the dissent erroneously concludes that
Odell’s requests for confidentiality were limited to her
“conversation” with an interviewee. The dissent derives
this conclusion in part from the portion of the “Interview
of Complainant” form directing the investigator to ex-
plain that “[t]his is a confidential interview,” and to ask
the interviewee “not to discuss this with your coworkers”
(emphasis added), and in part from Odell’s testimony
that she viewed her requests as being limited to her
“conversation” with employees. The dissent’s reading of
“this” divorces it from the context of the “Interview of
Complainant” form as a whole. The form’s instruction to
the investigator to request the employee not to discuss
“this” is immediately followed by instructions to admon-
ish the employee that the”[m]atter under investigation is
serious,” that the Respondent “has a commit-
ment/obligation to investigate this claim,” and that “[a]ny
attempt to influence the outcome of the investigation . . .
can be the basis for corrective action up to and including
termination.” In that context, any reasonable employee
would readily conclude that “this” means the entire mat-
ter being investigated, not just the employee’s conversa-
tion with the investigator. Moreover, even if Odell in-
tended her request to be so limited, there is no evidence
that she ever communicated that more limited intention
to any interviewee.
For similar reasons, there is no merit to the dissent’s
view that Odell’s requests were wholly unaccompanied
by any threat or even suggestion of discipline. The “In-
terview of Complainant” form prescribes warning inter-
viewees that “[a]ny attempt to influence the outcome of

14 See, e.g., Franklin Iron & Metal Corp., 315 NLRB 819, 820
(1994) (“It makes no difference whether employees were ‘asked’ not to
discuss their wage rates or ordered not do so . . . [i]n the absence of any
business justification for the rule, it was an unlawful restraint on rights
protected by Section 7 of the Act and violated Section 8(a)(1).”), enfd.
83 F.3d 156 (6th Cir. 1996). In any event, as discussed below, the
“Interview of Complainant” form demonstrates that Odell’s requests
arguably were accompanied by a threat of discipline.
the investigation . . . can be the basis for corrective action
up to and including termination.” Conceivably, the Re-
spondent intended this warning, which appears in a sen-
tence prohibiting retaliation and the giving of false testi-
mony, to apply only to coercive or other improper influ-
ence. But, from an employee’s standpoint, the discipli-
nary warning could just as reasonably be read to suggest
that any discussion in violation of the Respondent’s con-
fidentiality request might be deemed an “attempt to in-
fluence the outcome of the investigation.” At the very
least, the dissent too readily dismisses the possibility that
employees would so understand that warning in the con-
text of the Respondent’s prescribed statements as a
whole.
Indeed, the dissent’s failure to recognize that possibil-
ity is reflected more broadly in the test it articulates,
which would focus largely on whether a request for con-
fidentiality targeted or penalized Section 7 activity “that
has actually occurred,” and on whether “discipline was
imposed based on disclosures involving actual protected
concerted activity.” The orientation of this proposed
analysis toward actual interference with actual protected
activity ignores completely the potential chilling effect of
requests for confidentiality like the ones made by
Odell.15 Coupled with the possibility of discipline for
“[a]ny attempt to influence the outcome of [an] investi-
gation,” a reasonable employee may well conclude that
any discussion of his complaint, even if not his “conver-
sation” with Odell, simply is not worth the risk.16

15 As the judge noted, the General Counsel amended the complaint to
challenge the “Interview of Complainant” form itself, asserting a facial
challenge resting on its potential chilling effect on employees’ exercise
of their Sec. 7 rights.
16 The dissent insists that “many if not most workplace investigation
meetings do not implicate NLRA-protected activity,” and it offers a
series of hypothetical examples as supposed evidence that the statutory
interest implicated in cases like this one is negligible. Our colleague’s
claim gives far too little weight to the potential chilling effect of confi-
dentiality requirements on Sec. 7 activity, which the Act is intended to
protect. Employees may well wish to discuss investigations—and
even the content of a particular interview—for reasons that implicate
legitimate Sec. 7 activity. Indeed, each of our colleague’s hypothetical
examples actually illustrates how confidentiality requirements can
interfere with protected concerted activity. The potential for interfer-
ence with Sec. 7 rights is obvious in the case of a disciplinary investiga-
tion—employees may well wish to discuss disciplinary investigations
with each other in order to take steps to protect themselves either from
unfairly (or even unlawfully) imposed discipline or, conversely, to
protect themselves from the employer’s failure to impose discipline on
supervisors or coworkers who adversely affect their lives at work.
Other types of investigations implicate legitimate Sec. 7 concerns as
well, insofar as they involve—directly or indirectly—employees’
terms and conditions of work and employees’ possible desire to im-
prove them by acting together, whether by making demands on their
employer, by appealing to the public for support, or by taking their
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
By contrast, the Hyundai framework tends to minimize
this potential chilling effect. To the extent an employer
establishes an objectively reasonable basis for seeking
confidentiality during a particular investigation, employ-
ees will better understand not only why nondisclosure is
being requested, but also what matters are and are not
appropriate for conversation. This is in addition to the
previously discussed sound policy and practical reasons
to require employers to make this showing on a case-by-
case basis. The dissent nevertheless charges that we are
leaving employers without any guidance to make the
necessary determinations; that we are leaving employers
to make “just-in-time” guesses whether a request for con-
fidentiality is warranted, and that employers and employ-
ees alike will suffer the consequences. These charges are
unfounded.
As discussed, the Hyundai framework recognizes that
employers, relative to the Board and any other third par-
ty, have far superior access to information regarding the
nature of the employment matters under investigation
and the employees, supervisors, and/or managers poten-
tially implicated in those matters. Hyundai and the cases
preceding it, moreover, provide employers and their hu-
man resources representatives with a framework to ana-
lyze that information. That framework instructs employ-
ers to consider in each of their investigations the over-
arching question whether confidentiality is objectively
necessary to prevent corruption of the investigation.
More specifically, the Hyundai standard identifies types
of threats that, if established, will justify a requirement of
confidentiality (e.g., witnesses need protection or testi-
mony is in danger of being tampered with), and yet
leaves open the possibility that employers will face com-
parable threats that also will warrant requiring nondisclo-
sure.17

concerns to a government agency. Our point is not that Sec. 7 activity
will always, or even regularly, be a response to a workplace investiga-
tion, but instead to demonstrate the realistic possibility that it might be.
The Act aims to create and preserve the space in which employees may
act together to improve their terms and conditions at work. Employer
restrictions that narrow that space, that diminish the opportunity for
protected concerted activity, clearly implicate Sec. 7.
17 The dissent contends that our decision denies employers the bene-
fit of developing standard policies to guide their human resources rep-
resentatives in determining whether to request confidentiality in a par-
ticular investigation. To the contrary, there is nothing in today’s deci-
sion that would preclude employers from developing standard guidance
for human resources professionals, so long as those policies are con-
sistent with the framework described here and the considerations it
entails.
The dissent also advocates permitting employers to adopt preexisting
standard requests for nondisclosure in certain types of cases, asserting
that “confidentiality is predictably necessary in certain types of investi-
gations.” If, in fact, there are objectively reasonable grounds for requir-
Further, the relevant cases provide illustrative exam-
ples of circumstances in which confidentiality requests
have and have not been justified. Again, compare Cae-
sar’s Palace, 336 NLRB 271 (2001) (finding that the
employer lawfully applied a confidentiality rule during
an ongoing investigation of allegations that employees
and managers were engaged in illegal drug and drug-
related activity in the workplace based on the employer’s
determination that there was the possibility of a man-
agement coverup and management retaliation), with
Phoenix Transit Systems, 337 NLRB 510 (2002) (finding
unlawful the employer’s enforcement of a confidentiality
rule prohibiting employees from discussing their sexual
harassment complaints among themselves where the rule
originated in a sexual harassment investigation that had
closed long before and any need for confidentiality had
long expired). For those reasons, we remain confident
that the dissent’s dire predictions of harm to employer
investigations and concerned employees will not come to
pass.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion of
Law 3.
“3. The Respondent violated Section 8(a)(1) maintain-
ing and applying a policy of requesting employees not to
discuss ongoing investigations of employee miscon-
duct.”
ORDER
The National Labor Relations Board orders that the
Respondent, Banner Health System d/b/a Banner Estrella
Medical Center, Phoenix, Arizona, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Maintaining or enforcing the provision in its confi-
dentiality agreement that contains the following lan-
guage: “private employee information (such as salaries,
disciplinary action, etc.) that is not shared by the em-
ployee.”
(b) Maintaining or enforcing a policy of requesting
employees not to discuss ongoing investigations of em-
ployee misconduct.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

ing confidentiality, employers should have little difficulty applying and
satisfying the requirements we have set out.
7
BANNER ESTRELLA MEDICAL CENTER
(a) Rescind the provision in the confidentiality agree-
ment described above, and advise employees in writing
that the provision is no longer being maintained.
(b) Within 14 days after service by the Region, post at
all of its facilities where it utilizes its confidentiality
agreement, copies of the attached notice marked “Ap-
pendix B.”18 Copies of the notice, on forms provided by
the Regional Director for Region 28, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places, including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notic-
es are not altered, defaced, or covered by any other mate-
rial. If the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense a
copy of the notice to all current employees employed by
the Respondent at any time since November 7, 2010.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. June 26, 2015
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
In today’s decision, my colleagues find that an em-
ployer violated the National Labor Relations Act (NLRA
or the Act) by making a narrowly tailored “request” that
an employee refrain, “while this investigation is going

18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
on,” from repeating what was discussed during an inves-
tigative meeting. The employee in this case, James Na-
varro, never received such a request. However, if any
employees did, the judge found the request for nondis-
closure was only a “suggestion,” and it only encom-
passed the actual conversation that took place in the
meeting. Moreover, the record shows such a request was
made only after an individualized inquiry regarding the
need for nondisclosure in relation to a particular inter-
view and a particular investigation.
This case represents a disappointing extension of the
Board’s treatment of workplace investigations in Pied-
mont Gardens,1 where a Board majority changed existing
law and held that employers have an 8(a)(5) obligation to
disclose employee witness statements, and in Fresh &
Easy Neighborhood Market,2 where a Board majority
found that a single employee’s individual complaint—
involving a statute unrelated to the NLRA—subjected a
workplace investigation to the full panoply of NLRA
restrictions and requirements applicable to NLRA-
protected concerted activity. In Fresh & Easy, above,
years of NLRB litigation were required to resolve NLRA
issues arising from two comments made by a manager
during a single meeting regarding alleged sex harass-
ment. After a detailed analysis with an array of qualifi-
cations, the Board concluded that the manager’s two
comments were lawful. In the instant case, the Respond-
ent and other employers are not so fortunate: my col-
leagues find that any request for nondisclosure during a
workplace investigative meeting violates Federal law,
even if the request is unaccompanied by a threat of disci-
pline, with the narrowest of exceptions involving three
requirements: (i) it is “the employer’s burden” to justify
the request; (ii) this burden must be satisfied regarding
each “particular ongoing investigation,” and “the em-
ployer must proceed on a case-by-case basis’” and (iii)
the employer’s stated justification must involve “objec-
tively reasonable grounds for believing that the integrity
of the investigation will be compromised without confi-
dentiality.”
The only alleged basis for a violation here arises from
an internal “Interview of Complainant” form that was
never provided to employees. One point listed on that
form prompts a human resources (HR) consultant to

1 362 NLRB No. 139 (2015). As stated in my partial dissenting
opinion in Piedmont Gardens, I believe that Piedmont Gardens, Fresh
& Easy, and the instant case constitute a “trilogy of recent decisions . . .
where the Board is substantially undermining workforce investigations,
to the detriment of employers and employees alike.” Piedmont Gar-
dens, 362 NLRB No. 139, slip op. at 8 (Member Miscimarra, dissenting
in part).
2 361 NLRB No. 12 (2014).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
state: “I will keep our discussion confidential . . . and I
ask that you not discuss this with your coworkers while
this investigation is going on, for this reason, when peo-
ple are talking it is difficult to do a fair investigation and
separate facts from rumors.”3 An HR consultant, JoAnn
Odell, used the form to take notes while meeting with
employee Navarro. Odell testified she did not make any
nondisclosure request to Navarro, but she described
“maybe half a dozen” investigative meetings with other
employees where she made a nondisclosure request. The
General Counsel elicited no details regarding these situa-
tions, but Odell was asked about situations when she
“may” or “might” request nondisclosure, and Odell indi-
cated she conducted an individualized assessment of the
need for confidentiality.
I agree with the judge’s conclusion that a narrowly tai-
lored nondisclosure request like the one at issue here,
even if made routinely, is lawful under our statute. Many
workplace investigations relate to legal requirements
unrelated to the NLRA that benefit all employees. Such
investigations also address serious problems that are all
too common in the workplace, including fatalities, acci-
dents and injuries; workplace violence, sexual assaults,
or other criminal conduct; unlawful harassment or em-
ployment discrimination; or business issues that may be
important to employees, employers, and unions alike. In
all of these situations, nondisclosure requests serve the
legitimate and substantial interest of enhancing the inves-
tigation’s integrity and effectiveness, and the great ma-
jority of workplace investigations do not involve or give
rise to NLRA-protected activity.
Therefore, I respectfully dissent from my colleagues’
finding that the nondisclosure request at issue here vio-
lates Federal law.4 The Board routinely imposes more

3 GC Exh. 12, at 1 (emphasis added).
4 I concur with my colleagues’ finding, in agreement with the judge,
that Respondent did not violate Sec. 8(a)(1) by issuing a
nondisciplinary “coaching” to Navarro on February 21, 2011, or a
February 24, 2011 review of Navarro’s performance containing nega-
tive comments under “behaviors” based on complaints from his
coworkers. Also, I find that Respondent’s written “Employee Confi-
dentiality Agreement,” which prohibits disclosure (among other things)
of “[p]rivate employee information” including “salaries” and “discipli-
nary actions” unless “shared by the employee,” unduly interferes with
protected employee communications without countervailing important
business justifications in violation of Sec. 8(a)(1), and I agree that
remedial notice posting should be ordered at all of the Respondent’s
facilities where the “Employee Confidentiality Agreement” is in
force—but in the event that the Respondent has closed its Phoenix
facility or gone out of business, I would not require the Respondent to
mail the notice to former employees other than those employees for-
merly employed at its Phoenix location. Issues relating to the Re-
spondent’s “Employee Confidentiality Agreement” are separate and
independent from the “Interview of Complainant” form containing the
talking point, used by managers on a case-by-case basis, requesting
onerous disclosure restrictions in its own investigations
and hearings. Nor do I believe it is reasonable to find
this type of request unreasonably interferes with NLRA-
protected rights, especially where, as here, (1) the em-
ployee is not restricted from discussing anything with
union representatives and there is no denial of
Weingarten representation in the investigative meeting;5
(2) the request does not target, prevent, or penalize spe-
cific NLRA-protected concerted activity that has actually
occurred; and (3) no discipline was imposed based on
disclosures involving actual protected concerted activity.
Finally, I believe our statute requires the Board to bal-
ance the importance of a request for confidentiality—
made to protect the integrity of workplace investiga-
tions—against the possibility that such requests might
affect the exercise of rights afforded under our statute.
My colleagues relegate this balancing to employers, with
a requirement that they conduct a case-by-case appraisal
of the need for nondisclosure. The majority finds that
employers cannot even adopt internal guidelines identify-
ing particular types of investigations when employee-
participants can or should be asked not to disclose details
regarding investigative-meeting conversations. Conse-
quently, every manager and supervisor has the near-
hopeless task of guessing whether a majority of NLRB
Members or a reviewing court, after years of litigation,
may agree that a request for confidentiality was warrant-
ed at a particular time, regarding a particular interviewee,
in a particular investigation. This type of case-by-case
balancing can never produce reasonable certainty or pre-
dictability in practice. Moreover, by requiring employers
to perform this case-by-case balancing, I believe my col-
leagues improperly disregard the Board’s “responsibil-
ity” to apply the Act “‘to the complexities of industrial
life.’”6
The Board has the job of balancing the interests asso-
ciated with the type of request for confidentiality at issue
in the instant case. In my view, the only outcome con-
sistent with our statute and other competing interests is to
permit the narrow request for confidentiality at issue here
regarding matters discussed in a workplace investigative
meeting.
Facts
Employee James Navarro was concerned about tempo-
rary instrument-sterilizing procedures he was advised to

employees to keep confidential, “while this investigation is going on,”
the matters discussed during the investigative meeting.
5 NLRB v. J. Weingarten, 420 U.S. 251 (1975) (regarding employee
right to representation by a union representative during investigative
meetings reasonably likely to result in discipline).
6 Weingarten, supra, 420 U.S. at 266 (quoting NLRB v. Erie Resistor
Corp., 373 U.S. 221, 236 (1963)).
9
BANNER ESTRELLA MEDICAL CENTER
follow when the normal equipment could not be utilized.7
At his initiative, Navarro went to the office of the Re-
spondent’s HR Consultant, JoAnn Odell. Navarro in-
formed Odell he was uncomfortable with the temporary
sterilizing procedures and, as the judge found, Navarro
“expressed concern for his job.” Navarro had not been
summoned to meet with HR Consultant Odell. Rather,
Odell indicated he just showed up and, in her words,
“[h]e just wanted me to be aware of an incident that had
occurred over the weekend.”8
HR Consultant Odell’s responsibilities encompassed
“many things,” including “investigations” and “com-
plaints of employees.”9 During the Navarro meeting,
Odell typed notes into an internal “Interview of Com-
plainant” form, which was captioned “For Human Re-
sources Use Only.”10 The form contains an “Introduc-
tion” with the following points, written from the perspec-
tive of the HR consultant conducting the interview:
 Explain purpose of the investigation. Exam-
ple: “I am investigating a (your) complaint or
inappropriate behavior.”
 This is a confidential interview and I will
keep our discussion confidential except as re-
quire[d] by law, or Banner policy or as neces-
sary to conduct this investigation. I ask you
not to discuss this with your coworkers while
this investigation is going on, for this reason,
when people are talking it is difficult to do a
fair investigation and separate facts from ru-
mors.
 Matter under investigation is serious, and the
company has a commitment/obligation to in-
vestigate this claim.
 No conclusion/recommendation will be made
until all of the facts have been gathered and
analyzed.
 Any attempt to influence the outcome of the
investigation, any retaliation against anyone
who participates, any provision of false in-
formation or failure to be forthcoming can be
the basis for corrective action up to and in-
cluding termination.

7 At some point, Navarro received a nondisciplinary “coaching” and
a performance evaluation that contained a negative rating (based on
complaints the Respondent had received from Navarro’s coworkers).
The Board finds, unanimously, that the “coaching” and performance
evaluation received by Navarro were entirely lawful. See supra, fn. 4.
8 Hearing transcript (Tr.) 234–235.
9 Tr. 230–231.
10 Tr. 242. The text of the entire “Interview of Complainant” form
(without Odell’s notes specific to Navarro) is attached to this opinion as
an App. A.
 Please remember there is no tolerance for re-
taliation. If you or anyone else feels they ex-
perience retaliation as a result of this investi-
gation you should tell your HR dept. or my-
self immediately.
Several points are important to understand about the
record evidence regarding the above form.
First, the “Interview of Complainant” form was never
given to Navarro or any other employee of the Respond-
ent. Odell testified that employees never received the
“Interview of Complainant” form, nor is there evidence
that any employee was shown the form.11
Second, the Introduction points are written in a general
manner that makes clear particular points might or might
not be used by an HR consultant in a given meeting. The
first point, for example, covers three different potential
situations: (i) an investigation of “your” complaint
(where, as in the instant case, the employee went to the
HR consultant to make a complaint); (ii) an investigation
of “a” complaint (i.e., someone else’s complaint); or (iii)
an investigation of “inappropriate behavior” (i.e., not
necessarily arising from anyone’s complaint).12
Third, the Introduction is designed in part to help and
reassure the employee. The listed points instruct the HR
consultant to explain the meeting’s “purpose,” to state
that the employer has “no tolerance for retaliation,” and
to reassure the employee that the HR representative “will
keep our discussion confidential.” The Board requires
similar assurances in employee meetings conducted in
preparation for NLRB proceedings. See Johnnie’s Poul-
try Co., 146 NLRB 770, 775 (1964) (requiring, among
other things, that “the employer . . . communicate to the
employee the purpose of the questioning, assure him that
no reprisal will take place, and obtain his participation on
a voluntary basis”).
Fourth, the record establishes that employees were not
routinely asked to keep matters discussed in investigative
meetings confidential, and the record reveals that a re-
quest for nondisclosure was never made to employee
Navarro. Odell testified that she typed notes on the “In-
terview of Complainant” form when Navarro showed up
in her office on February 21.13 However, when Odell
was examined by the General Counsel regarding the re-

11 Tr. 193. The judge likewise found: “The interview of complain-
ant form is not given to employees.” Banner Estrella Medical Center,
358 NLRB No. 93, slip op. at 6 (2012).
12 As another example, the third point distinguishes between com-
plaints that give rise to a legal employer “obligation” to investigate (for
example, sex harassment complaints), and those investigations under-
taken based on an employer “commitment” not necessarily required by
law.
13 Tr. 192; GC Exh. 12.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
quest “not to discuss this with your coworkers while this
investigation is going on,” Odell was asked: “In every
interview that you conduct, you say that to the complain-
ants, correct?” Odell responded: “Not necessarily. I did
not in this case.”14 Odell explained there were roughly
half-a-dozen “other cases” where, unlike the Navarro
meeting, she asked the employee to refrain from disclos-
ing what was discussed during the investigative meet-
ing.15 When Odell was recalled as a witness by the Re-
spondent, she elaborated as follows:
Q. Ms. Odell, going back to GC Exhibit 12, . . .
the request to keep information confidential, you tes-
tified earlier this morning you relay that request [to]
. . . employees maybe half a dozen times?
A. During investigations only.
Q. Right . . . what would you term as an investi-
gation?
A. Investigation would be something that I
would need to speak to at least more than one per-
son.
Q. Okay. A conversation you had with Mr. Na-
varro on February 21st, do you consider that an in-
vestigation?
A. No.16
Fifth, as noted above, the record establishes that non-
disclosure was not routinely requested regarding matters
discussed in employee meetings. Rather, Odell refrained
from mentioning nondisclosure unless she determined,
based on an individualized inquiry, that a need existed
for nondisclosure in relation to a particular investigation.
Indeed, across the Respondent’s entire business, the rec-
ord establishes that only one HR consultant (Odell) re-
quested employee nondisclosure “maybe half a dozen
times.”17 These instances were limited, for starters, to
“investigation” meetings (i.e., only when a need existed
“to speak to . . . more than one person”). Even in inves-
tigations, as reflected in the following exchange, Odell
applied further scrutiny when evaluating whether she
“may” or “might” request nondisclosure:
Q. Okay. Are there particular types of investiga-
tions that you have particular sensitivity issues
where you may ask someone to keep things confi-
dential? For example, such as sexual harassment in-
vestigation?

14 Tr. 193–194 (emphasis added).
15 Tr. 194.
16 Tr. 258–259 (emphasis added). In addition, Navarro did not testi-
fy he received a nondisclosure request from Odell, and the judge did
not find that Odell made such a request during the Navarro meeting.
17 Tr. 194, 258, 260.
A. Well, sexual harassment, you know, those are
common—
Q. Typical for sensitivity—any other examples
of sensitivity issues where you might make this re-
quest to keep your—
A. Hostile work environment also.
Q. Okay.
A. Suspicion of abuse or something like that.
Q. Okay. And again, maybe, you’ve made this
request maybe a half a dozen times?
A. Uh-huh.
Q. Just in the more sensitive situations.
A. Right.18
Sixth, even if a nondisclosure request was conveyed in
every investigation meeting (which is not established by
the record), the request was narrowly tailored in other
respects:
 The HR consultant only makes a “request.”
According to the “Interview of Complainant”
form, the HR consultant states: “I ask you
not to discuss this with your coworkers . . . .”
Odell, when asked whether “that [is] an in-
struction or requirement or simply a request,”
responded, “It’s a request.”19 To the same ef-
fect, the judge found that, when requesting
nondisclosure, “Odell asks employees not to
discuss the matter with their coworkers while
the investigation is ongoing,” and he found

18 Tr. 259–260 (emphasis added). The majority erroneously con-
cludes, based on Odell’s testimony quoted in the text, that she did not
undertake an individualized inquiry before determining whether to
request nondisclosure. Rather, my colleagues insist the record shows
Odell “took a more categorical approach” and requested confidentiality
“in any investigation into alleged sexual harassment, hostile work envi-
ronment, charge of abuse, or similar alleged misconduct” (emphasis
added). It bears emphasis that the General Counsel has the burden of
proof regarding this issue, and I believe my colleagues’ findings are
unsupported by a “preponderance” of the evidence. See Sec. 10(c)
(unfair labor practice findings must be supported by a “preponderance
of the testimony taken”). The record reveals, at most, that Odell gave
some hypothetical “examples” of “investigations” or “types of investi-
gations” involving “particular sensitivity issues” where she “might” or
“may” make a request for nondisclosure. Id. (emphasis added). Odell
also indicated she requested confidentiality only “in the more sensitive
situations.” Id. Significantly, this testimony does not establish that the
hypothetical “examples” described by Odell (where she “might” or
“may” request nondisclosure) corresponded to any of the “maybe half a
dozen times” when, in the past, she actually requested nondisclosure.
Nor did the General Counsel elicit from Odell any details regarding her
actual nondisclosure requests. For these reasons, in my view, the ma-
jority’s description of the Respondent’s alleged “categorical approach”
amounts to “mere speculation without a jot of evidentiary support in the
record.” Jackson Hospital Corp. v. NLRB, 647 F.3d 1137, 1142 (D.C.
Cir. 2011).
19 Tr. 196 (emphasis added).
11
BANNER ESTRELLA MEDICAL CENTER
the request was a “suggestion” (emphasis
added).
 The duration of the request is limited to the
pendency of the investigation. According to
the “Interview of Complainant” form, the HR
consultant states: “I ask you not to discuss
this with your coworkers while this investiga-
tion is going on” (emphasis added).
 The scope of the nondisclosure request is also
limited. The form instructs the HR consultant
to ask the employee to refrain from discussing
with coworkers only “this,” which Odell de-
scribed as “our conversation.”20 Odell further
testified that, apart from asking that “this”
conversation remain confidential “while [the]
investigation is going on,” she does not pro-
hibit employees from discussing “their own
complaints” or any other issues with cowork-
ers, even if the same complaints or issues
were the subject of the meeting with Odell.21
 The record establishes that the nondisclosure
request was unaccompanied by a threat of
discipline. In addition to the fact that nondis-
closure was only requested, other talking
points state there was protection against “re-
taliation.” The only reference to potential
discipline is contained in point 5, which de-
scribes obvious misconduct such as giving
“false information” or engaging in “retalia-
tion” against others, among other examples.
Moreover, the record establishes that Odell

20 Tr. 259.
21 Tr. 259. Odell responded as follows to questioning about the
scope of her nondisclosure request:
Q. When you ask someone to keep something confidential—
A. Yes.
Q. —during your investigation, are you telling someone who
brought the complaint to you not to discuss their complaint with
their co-workers?
A. Not necessarily. Just the—our discussion, from complaint
to, a complainant to investigator, our conversation. Because, the
purpose is to keep the investigation as pure as possible, so there’s
not, you know, what did you say, what did I say and kind of com-
paring notes, ‘cause I’m trying to keep opinions as pure as possi-
ble, opinions or facts, if you will.
Q. Okay. So that in no way limits a co-worker’s right to dis-
cuss their own complaints?
A. No.
Q. Even if they brought them to you to discuss them also
with their co-workers?
A. No.
Id.
interceded to prevent any imposition of disci-
pline against Navarro.22
 The only commitment of confidentiality was
imposed on the employer. According to the
“Interview of Complainant” form, the HR
consultant would state: “This is a confiden-
tial interview and I will keep our discussion
confidential except as require[d] by law, or
Banner policy or as necessary to conduct this
investigation” (emphasis added). The record
also shows that Odell treated employee meet-
ings with a high degree of confidentiality.23
Finally, there is no doubt here about the Respondent’s
legitimate, substantial business justification in the limited
instances when Odell may have “asked” or made a “sug-
gestion” that an employee not discuss the specifics of an
investigative meeting “while [the] investigation [was]
still going on.”24 According to the “Interview of Com-
plainant” form, the HR consultant explains the “reason”
for this request or suggestion—namely, “when people are
talking it is difficult to do a fair investigation and sepa-
rate facts from rumors.”25 And Odell testified that “[t]he
purpose of that statement is to keep the investigation . . .
as pure as possible”26 so “there’s not . . . what did you
say, what did I say . . . comparing notes” regarding
“opinions or facts.”27 Thus, the record provides no basis
for overturning the judge’s following findings:
The interview of complainant form is not given to em-
ployees. During interviews of employees making a
complaint, Odell asks employees not to discuss the
matter with their coworkers while the investigation is
ongoing. I find that suggestion is for the purpose of
protecting the integrity of the investigation. It is analo-
gous to the sequestration rule so that employees give

22 Odell testified, and the judge found, that Manager Ken Fellenz
“wanted to put Navarro on corrective action” for failing to follow the
temporary sterilizing procedures, and Navarro instead received a
nondisciplinary “coaching” after “Odell advised against corrective
action” given there was “no procedure in place . . . as suggested by
Fellenz.” Banner Estrella Medical Center, 358 NLRB No. 93, slip op.
at 5. See also Tr. 244–245.
23 Odell testified that she regarded every interview as “confidential”
and she did not share her meeting notes on the “Interview of Complain-
ant” form with “anyone else that I interview,” Tr. 193, and “not even
[with] managers,” Tr. 194. Odell testified that, even though she later
had a meeting about Navarro with two supervisors—Senior Manager
Ken Fellenz and Director of Peri-Operative Services Joan McKisson—
she “did not mention James coming to my office or what we discussed
at all,” Tr. 245–246.
24 GC Exh. 12.
25 Id.
26 Tr. 193, 259.
27 Tr. 259.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
their own version of the facts and not what they heard
another state. I find that Respondent has a legitimate
business reason for making this suggestion. Accord-
ingly, I find no violation.28
In short, what we have here is an internal document,
never shown to employees, about which HR Consultant
Odell testified, in precise, specific terms, regarding her
assessment of whether particular investigations presented
a need for confidentiality. Only in certain investiga-
tions—“maybe half a dozen” total29—Odell made what
the judge described (twice) as a “suggestion”30 that an
employee refrain from discussing with coworkers specif-
ics about the investigative-meeting conversation itself,
with the additional caveat that the request applied only
“while this investigation is going on,” and explaining
that the “reason” was “when people are talking it is diffi-
cult to do a fair investigation and separate facts from
rumors.”31 Odell testified she never made this request
unless, for starters, she needed “to speak to at least more
than one person.”32 The General Counsel did not elicit
details regarding the half-dozen employee meetings in
which Odell made non-disclosure requests. However,
when asked about hypothetical situations when she
“may” or “might” request non-disclosure, Odell indicat-
ed these would involve only “the more sensitive situa-
tions,” such as “sexual harassment,” “[h]ostile work en-
vironment” or “[s]uspicion of abuse or something like
that.”33
Discussion
My colleagues find that Section 8(a)(1) prohibits su-
pervisors from requesting employees, while a workplace
investigation remains ongoing, not to disclose details
about their investigative meeting conversation. My col-
leagues reason that this type of nondisclosure request is
unlawful even though (1) no employee was restricted
from discussing anything with union representatives, and
there was no denial of Weingarten representation; (2) the
request did not target, prevent or penalize specific

28 Banner Estrella Medical Center, 358 NLRB No. 93, slip op. at 6
(emphasis added).
29 Tr. 258–259. See also Tr. 194, 196.
30 Banner Estrella Medical Center, 358 NLRB No. 93, slip op. at 6.
31 GC Exh. 12 at 1.
32 Tr. 258.
33 Tr. 260. As indicated in fn.18 and the accompanying text, supra, I
believe the record falls far short of satisfying the General Counsel’s
burden to prove what the majority describes as a “categorical approach”
in which Odell requested confidentiality “in any investigation into
alleged sexual harassment, hostile work environment claim, charge of
abuse, or similar alleged misconduct.” Moreover, in my view, the type
of narrow request at issue in the instant case should be considered
lawful even if it were part of a “categorical approach” or was routinely
utilized in all workplace investigations. See part 3, infra.
NLRA-protected concerted activity that actually oc-
curred; and (3) no discipline was imposed based on dis-
closures involving actual protected concerted activity.34
I believe my colleagues’ conclusion that our statute
prohibits reasonable nondisclosure requests about mat-
ters discussed during workplace investigation meetings is
erroneous and ill-advised in three respects.
1. The Majority’s Finding of Illegality is Misplaced
Given the Particular Facts in this Case. I believe my
colleagues make a broad pronouncement of illegality that
has little or nothing to do with the facts of the instant
case. The record establishes that employee Navarro nev-
er received a nondisclosure request from HR Consultant
Odell, and my colleagues make no finding to the contrary
(notwithstanding the prior Board decision’s indication
that Navarro received such a request).
Additionally, I believe the Respondent engaged in pre-
cisely the type of conduct that, according to the majority,
should render lawful the “maybe half a dozen” requests
for nondisclosure that were described by Odell. As noted
previously, the General Counsel did not elicit details
from Odell regarding any of the actual situations when
she requested nondisclosure. Rather, the record indicates
Odell testified about some hypothetical “examples” or
“types of investigations” where, based on “particular
sensitivity issues” or “in the more sensitive situations,”
she “might” or “may” make a request for nondisclosure.35
In this context, Odell mentioned three types of cases—
sex harassment, hostile work environment, or charges of
abuse—as examples where she “might” or “may” request
nondisclosure.36 Nothing in Odell’s testimony suggests
she adopted, as my colleagues claim, a “categorical ap-
proach” involving nondisclosure requests “in any inves-
tigation into alleged sexual harassment, hostile work en-
vironment claim, charge of abuse, or similar alleged mis-
conduct.” The record does not even establish that the
“maybe half a dozen” situations when Odell actually
requested nondisclosure involved sex harassment, hostile
environment, or abuse allegations. In any event, given
that the majority finds a violation on the facts presented

34 For ease of reference, I use the term “nondisclosure request” to
describe requests like the one described in the Respondent’s “Interview
of Complainant” form that do not involve any of the three categories
described in the text. Conduct involving any of these three categories
would involve a far more substantial potential impact on NLRA-
protected rights than exists in the instant case. However, because none
of these three categories is at issue here, I do not pass on the extent to
which such conduct would violate the Act. This would most appropri-
ately be addressed based on the actual facts presented in a particular
case.
35 Tr. 259–260 (emphasis added). See also fn. 18. and accompany-
ing text, supra.
36 Id.
13
BANNER ESTRELLA MEDICAL CENTER
here, I do not understand how any employer can lawfully
make a nondisclosure request during an investigative
meeting with confidence that it will pass muster with the
Board.
It is also hard to envision how the “Interview of Com-
plainant” form could be characterized as a “policy” be-
cause Odell’s testimony established the form was never
given to employees, and Odell testified she did not even
give it to other managers.37 Nor can the form reasonably
be interpreted as a policy that prohibited discussions
about “ongoing investigations of employee misconduct.”
Odell’s testimony contradicts such an interpretation: she
stated that her infrequent nondisclosure requests were
limited in scope to the actual “conversation” that took
place during the investigative meetings, and employees
remained free to discuss with coworkers “their own
complaints,” even if such complaints were the subject of
the meeting with Odell.38
My colleagues maintain that, for a nondisclosure re-
quest to be lawful, the employer bears the “burden to
justify a prohibition on employees discussing a particular
ongoing investigation,” the employer “must proceed on a
case-by-case basis,” and the employer’s stated justifica-
tion “must be based on objectively reasonable grounds
for believing that the integrity of the investigation will be
compromised without confidentiality.” As explained
below, I disagree with this standard. However, even ap-
plying it, the record shows that Odell refrained from
making any nondisclosure requests in any workplace
investigation meetings except when she determined it
was justified by a “particular ongoing investigation,” and
her unrebutted testimony establishes that, when evaluat-
ing the potential need to request nondisclosure, she made
an individualized determination that reasonable grounds
existed for believing the integrity of the investigation
would be compromised without confidentiality. Again,
she indicated she “may” or “might” request confidentiali-
ty only when investigations involved “particular sensitiv-
ity issues” or “the more sensitive situations.”39
Contrary to my colleagues’ finding that the employer
bears the burden of justifying any nondisclosure request,
our statute requires that the General Counsel bear the
burden of proving violations of the Act based on a “pre-
ponderance” of the testimony.40 I believe the judge cor-
rectly found, based on the record and his evaluation of
witness credibility, that an employer does not violate

37 Tr. 193–194 (Odell indicates employees “never receive a copy” of
the interview form, she did not “share it with anyone else that I inter-
view,” and “not even managers would get a copy of this document”).
38 See fns. 20 And 21, supra, and accompanying text.
39 Supra, fn.18.
40 Sec. 10(c).
Federal law by doing what occurred here (a half-dozen
times or so): asking an employee not to disclose, while
the investigation remains ongoing, what was said during
conversations that take place in a workplace investigative
meeting.
2. The Majority Test does not Appropriately Balance
any Interference with Section 7 Rights Against the Rea-
sons Favoring Nondisclosure of Conversations that Oc-
cur in Workplace Investigations. I believe my colleagues
also fail to adequately balance employee rights under our
statute against the importance of workplace investiga-
tions, most of which do not concern NLRA-protected
concerted activity; and the majority improperly disre-
gards the predictable need to avoid contemporaneous
disclosure of specific matters discussed in an investiga-
tive meeting, a need the Board itself recognizes and en-
forces in its own proceedings.
In NLRB v. Great Dane Trailers, Inc.,41 the Supreme
Court referred to the Board’s “duty to strike the proper
balance between . . . asserted business justifications and
the invasion of employee rights in light of the Act and its
policy” (emphasis added).42 Similarly, in NLRB v. Erie
Resistor Corp.,43 the Supreme Court stated that actions
that undermine or discriminate against NLRA-protected
rights may be justified on the basis that they “were taken
in the pursuit of legitimate business ends and . . . to ac-
complish business objectives acceptable under the Act.”
The Supreme Court described the “teaching of the
Court’s prior cases dealing with this problem,” and stat-
ed:
As is not uncommon in human experience, such situa-
tions present a complex of motives and preferring one
motive to another is in reality the far more delicate task,
reflected in part in decisions of this Court, of weighing
the interests of employees in concerted activity against
the interest of the employer in operating his business in
a particular manner and of balancing . . . the intended
consequences upon employee rights against the busi-
ness ends to be served by the employer’s conduct.44
As noted above, I believe the Board has the responsi-
bility here to discharge the “delicate task” of “weighing

41 388 U.S. 26, 33–34 (1967).
42 In the context of addressing alleged violations of Sec. 8(a)(3),
which require proof of unlawful motivation, the Supreme Court in
Great Dane held that where there were “legitimate and substantial
business justifications for the [employer’s] conduct,” and where “the
adverse effect of the discriminatory conduct on employee rights is
‘comparatively slight,’” “an antiunion motivation must be proved to
sustain the charge.” Id. (citations omitted).
43 373 U.S. 221, 229 (1963).
44 Id. at 228–229 (emphasis added; footnote omitted).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
the interests of employees in concerted activity” against
the “interests of the employer” and “the business ends to
be served by the employer’s conduct.”45 One problem in
my colleagues’ approach—though certainly not the big-
gest problem—is they effectively shift to employers the
burden of engaging in a case-by-case “weighing” and
“balancing,” without acknowledging that, in the great
majority of cases, a nondisclosure request will produce
no adverse effect on Section 7 rights or the risk will be
“comparatively slight,” especially in the absence of the
three categories of more serious conduct described previ-
ously.46
(a) Narrow Nondisclosure Requests in Investigative
Meetings do not Significantly Interfere with NLRA-
Protected Conduct. The first “delicate task” described
above is to weigh the “interests of employees in concert-
ed activity” that may be affected by a nondisclosure re-
quest in an investigative meeting.47
My colleagues find the Respondent’s confidentiality
“policy” regarding ongoing misconduct investigations
violates Section 8(a)(1), which makes it unlawful for an
employer “to interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed in section
7.”48 Section 7 (as relevant here) gives employees the
right to engage in “concerted activities for the purpose of
collective bargaining or other mutual aid or protection”
(emphasis added). I have described Section 7 as the
“cornerstone of the Act” that “unquestionably confers
protection regarding a range of activities.”49
However, the great majority of workplace investigative
meetings do not involve NLRA-protected conduct. Sec-
tion 7 protects employee activities only if they are “con-
certed,” and only if motivated by the “purpose” of “col-
lective bargaining or other mutual aid or protection.”
Under Meyers Industries,50 the first prerequisite—
“concerted” activity—is satisfied in circumstances in-
volving “‘a speaker and a listener’” only where the con-

45 Id.
46 Great Dane, 388 U.S. at 34 (quoting NLRB v. Brown, 280 U.S.
278, 289 (1965); American Ship Building Co. v. NLRB, 380 U.S. 300,
311–313 (1965)). For the three categories of conduct described previ-
ously, see fn. 34 and the accompanying text, supra.
47 Erie Resistor, 373 U.S. at 228–229.
48 The factual flaws in the majority’s finding have already been dis-
cussed. There was no policy, and any nondisclosure request was lim-
ited in scope to the actual conversation that took place during the inves-
tigative meetings.
49 Fresh & Easy, 361 NLRB No. 12, slip op. at 13 (Member
Miscimarra, dissenting in part).
50 Meyers Industries, 268 NLRB 493 (1984) (Meyers I), remanded
sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied
474 U.S. 948 (1985), on remand Meyers Industries, 281 NLRB 882
(1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C.
Cir. 1987), cert. denied 487 U.S. 1205 (1988).
versation was “‘engaged in with the object of initiating
or inducing or preparing for group action or . . . had
some relation to group action in the interest of the em-
ployees.’”51 “[M]ere talk” or “griping” that does not
“look[ ] toward group action” does not amount to con-
certed activity.52 As I observed in Fresh & Easy:
If one person is a witness to somebody else’s car crash,
and if they both have a shared interest in avoiding such
accidents, this does not mean they have engaged in
“concerted” activity. Rather, our cases establish that
“concerted” activity takes place, within the meaning of
Section 7, only if the conduct involves or contemplates
a joint endeavor to be “done or performed together or
in cooperation.”53
Even if conduct involving two or more employees is “con-
certed,” Section 7 confers protection only if the second pre-
requisite is met: the conduct must also be undertaken for
the “purpose” of “collective bargaining or other mutual aid
or protection.”54 Therefore, and setting aside other types of
Section 7 activity not at issue here, employees engage in
NLRA-protected conduct only if the conduct is “concerted”
and has a “purpose” that involves “mutual” aid or protec-
tion.55
Given the above parameters, it is unsurprising that
many or most workplace investigation meetings do not
involve or give rise to NLRA-protected activity. This is
illustrated by the following examples:
1. Discipline Investigations—No Automatic NLRA-
Protected Conduct. Even though an employee
complaint followed by investigative interviews
may lead to discipline or discharge, there is no per
se rule that such investigations involve conduct
protected by Section 7. The same prerequisites
apply: employee discussions or interaction will
not have Section 7 protection unless two or more
employees engage in “concerted” activity with a
“purpose” of “mutual aid or protection.” And
even if employees honor a non-disclosure request
regarding the investigative-meeting conversation,
the complainant and other employees can still
have NLRA-protected discussions regarding the
employee complaint, the subject matter of the in-
vestigation, and other matters.

51 Meyers II, 281 NLRB at 887 (emphasis added) (quoting Mush-
room Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir 1964)).
52 Mushroom Transportation, 330 F.2d at 685.
53 Fresh & Easy, 361 NLRB No. 12, slip op. at 16 (Member
Miscimarra, dissenting in part).
54 Sec. 7 (emphasis added).
55 See generally Fresh & Easy, 361 NLRB No. 12, slip op. at 16–19
(Member Miscimarra, dissenting in part).
15
BANNER ESTRELLA MEDICAL CENTER
Example 1—Workplace Fatalities / Safety Investi-
gation. Two maintenance employees assigned to
clean a railway tank car are discovered dead from
asphyxiation, and more than 350 other employees
perform the same cleaning operation every week.
The Company conducts investigative interviews
with 17 employees who had some involvement
with the tank car and cleaning operation during
the week in question, and the employer and any
responsible employees face potential criminal lia-
bility. Some of the 17 employees talk among
themselves and with others about the accident, but
with no thought of group action. There is no
NLRA-protected conduct in this situation because
concerted activity is absent and there is no pur-
pose of mutual aid or protection. Moreover, even
if all 17 employees complied with a request not to
discuss their interview conversations, the employ-
ees are free to engage in NLRA-protected discus-
sions regarding safety, employee complaints, and
other matters.
2. No “Concerted” Activity by Employees. Other
investigations will bear no relation to activity pro-
tected under the Act because none of the employ-
ee-participants engage in “concerted” activity.
Example 2—Sex Harassment Investigation. A sex
harassment investigation involves meetings with 7
people: the employee who complained, the al-
leged co-employee harasser, and five potential
employee-witnesses. There would be no NLRA-
protected activity if these employees engage in no
concerted activity. And they would not engage in
concerted activity by discussing the incident or the
complaint unless their discussion sought to initi-
ate, induce, or prepare for group action. As noted
above, mere “griping” or “talk” between employ-
ees does not constitute concerted activity, even if
it relates to the complaint being investigated.56
3. No “Mutual Aid or Protection.” Even if two or
more employees engage in concerted activity, this
will still be unprotected under Section 7, as noted
above, unless it also has the “purpose” of “mutual
aid or protection.”
Example 3—Defective Product Investigation. A
“defective product” investigation involves meet-
ings with 5 employees: the employee who dis-
covered a defect, two other employees who
worked the same shift, and two employees who

56 Mushroom Transportation, 330 F.2d at 685.
work other shifts. Before the Company started its
investigation, one employee took it upon herself to
meet with the other 4 employees, following which
she wrote a joint memo summarizing the number
of defects each person encountered in the prior
three months. This involves concerted activity but
no NLRA-protected purpose of mutual aid or pro-
tection. (Their purpose is to protect consumers of
the employer’s products.)
4. Employer-Sponsored Activities. Employers nearly
always have meetings, programs or focus groups,
during or outside of work, in which employee-
participants discuss and address particular issues
or problems. The activities of employees at such
employer-sponsored events do not necessarily
constitute NLRA-protected conduct.
Example 4—Violent Crime Investigation. Over a
10-month period, 7 night-shift employees are
physically assaulted after leaving the company’s
premises at the end of their shifts, and the em-
ployer receives an anonymous report that the un-
named assailant works on the second shift. The
Company conducts an investigation involving
meetings with the 7 employees who were assault-
ed and 13 second-shift employees who worked on
days when the assaults occurred. The Company
also sponsors “safety-first” meetings for all em-
ployees and helps arrange a “buddy system”
whereby all night-shift employees leave in groups
of two or more people.
5. Investigation Unrelated to Employment. Many in-
vestigations and meetings relate to business mat-
ters with no direct impact on wages, hours, bene-
fits, discipline or other employment matters. The-
se investigations and meetings normally will not
involve any NLRA-protected activity even though
many employees may participate in them.
Example 5—Production Capacity Investigation.
The employer is contacted by a potential customer
about new business that may require more than the
employer’s current production capacity. The em-
ployer conducts an investigation, involving sepa-
rate meetings with production employees, to dis-
cuss capacity constraints and ways to increase
production.
Several aspects of the above examples illustrate why,
in my view, a narrowly tailored nondisclosure request
either leaves NLRA-protected activity unaffected or,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
borrowing the Supreme Court’s language in Great Dane,
at most has an impact that is “comparatively slight.”57
First, none of the examples involves NLRA-protected
activity. The majority opinion leaves the impression that,
after every investigative interview, every employee runs
out to exercise his or her “Section 7 right to discuss dis-
cipline or ongoing disciplinary investigations.” There is
no support for such a proposition in the record. I agree
employees have the Section 7 right described by my col-
leagues (assuming the employees’ discussion constitutes
concerted activity and is not mere talk, and further as-
suming that the employees engaged in the discussion
have a purpose of mutual aid or protection),58 and cer-
tainly, if and when employees choose to exercise this
right,59 I agree such discussions are “vital to employees’
ability to aid one another in addressing employment
terms and conditions with their employer.” But my col-
leagues fail to acknowledge that, in the contemporary
workplace, the overwhelming majority of matters that are
the subject of workplace investigations never reach the
door of the NLRB,60 and I believe the great majority of
workplace investigations do not involve or give rise to

57 Great Dane, 388 U.S. at 34.
58 There is, of course, no such thing as a “Section 7 right to discuss
discipline or ongoing disciplinary investigations.” Sec. 7 does not
protect employees engaged in such discussions unless the discussions
constitute concerted activity for the purpose of mutual aid or protection.
59 Employees under Sec. 7 also have the protected right to “refrain
from any or all of such activities” (subject to an exception relating to
union security arrangements outlined in Sec. 8(a)(3) of the Act).
60 Neither the majority opinion nor this dissent relies on an empirical
analysis of the number of workplace investigations that involve or give
rise to Sec. 7 activity by employees, and I doubt that such an empirical
analysis exists. However, I believe the Board can take notice that pres-
ently, employers and employees are regulated by a vastly greater num-
ber of Federal, State, and local laws, unrelated to the NLRA, than have
ever previously existed in the United States. It is also relevant that
more than 116 million private sector employees are employed in the
United States. U.S. Dept. Labor, Bureau of Labor Statistics, Economic
News Release, Table B-1, Employees on Nonfarm Payrolls by Industry
Sector and Selected Industry Detail (April 2014)
(http://www.bls.gov/news.release/empsit.t17.htm). By comparison, the
Board’s entire unfair labor practice charge intake in Fiscal Year 2013
consisted of 21,394 charges resulting in 1272 complaints (which in-
cludes charges filed and complaints issued against unions). NLRB
Charges and Complaints (http://www.nlrb.gov/news-outreach/graphs-
data/charges-and-complaints/charges-and-complaints). The employ-
ment figure stated above does not precisely conform to the number of
employees who are subject to the NLRA (since, among other things,
this figure includes railway and airline employees subject to the Rail-
way Labor Act), and one can also assume that a much greater number
of employees engage in protected concerted activity than is reflected in
Board charges and complaints. However, all employees are potentially
affected by workplace investigations, and even if the above figures are
viewed in the most conservative manner possible, they suggest an ex-
tremely small proportion of those employees engage in protected con-
certed activity that rises to the level of receiving attention from the
Board.
protected concerted activity. Consistent with the “weigh-
ing” and “balancing” that is required of the Board,61
which has the “responsibility to adapt the Act to chang-
ing patterns of industrial life,”62 I believe the majority
improperly assumes that the most important considera-
tion in all investigations, and for employees affected by
investigations, is the possibility that employees may en-
gage in NLRA-protected activity.
Second, even if employees exercise their right to en-
gage in NLRA-protected conduct in relation to a work-
place investigation, the above examples demonstrate that
the employees’ Section 7 rights would be unaffected by
the limited nondisclosure request at issue here, or any
adverse effect would, at most, be extremely small. Con-
sider the plight of employees and the employer described
in the “Workplace Fatalities / Safety Investigation,”
where (i) two employees assigned to clean a railway tank
car are discovered dead from asphyxiation; (ii) more than
350 other employees perform the same cleaning opera-
tion every week; (iii) the employer must conduct investi-
gative interviews with 17 employees who had some in-
volvement with the tank car and cleaning operation dur-
ing the week in question; and (iv) the employer and any
responsible employees face potential criminal liability.
Under my colleagues’ approach, the Board would focus
on the possibility that one or more of the 17 employees
being interviewed might engage in NLRA-protected ac-
tivity, without considering the critical interest shared by
all employees—especially the 350 employees who per-
form the very same cleaning operation—in ensuring that
their employer conducts an effective investigation. Yet
there is no doubt that my colleagues’ standard would
render impermissible the type of narrow nondisclosure
request at issue in this case, i.e., a “suggestion” that the
employee only refrain from discussing details of the in-
vestigative-meeting conversation itself.63 Thus, in the

61 Erie Resistor, 373 U.S. at 228–229.
62 Weingarten, 420 U.S. at 266.
63 The wording of GC Exh. 12 and Odell’s testimony (quoted in the
text accompanying fn. 20 and in fn. 21, supra) indicate that any nondis-
closure request only pertained to the “conversation” that occurred dur-
ing an investigative meeting. It is also clear that my colleagues’ stand-
ard, in the “Workplace Fatalities / Safety Investigation” example,
would invalidate any nondisclosure request. Not only do they state that
“it is the employer’s burden to justify a prohibition” in relation to the
“particular ongoing investigation,” but the justification “must be based
on objectively reasonable grounds for believing that the integrity of the
investigation will be compromised without confidentiality.” Even
though the “Workplace Fatalities / Safety Investigation” obviously
involves extremely important issues, and even though a limited nondis-
closure request of the type at issue here would help ensure an effective
investigation, such an instruction would be unlawful under the majori-
ty’s standard. The “Workplace Fatalities / Safety Investigation” in-
volves two employee deaths and the possibility of 350 additional deaths
or serious injuries, but nothing evidences what the majority apparently
17
BANNER ESTRELLA MEDICAL CENTER
“Workplace Fatalities / Safety Investigation,” even if
employees honored such a limited nondisclosure request,
every employee could still freely exercise his or her
NLRA-protected right to engage in protected concerted
discussions regarding the investigation, any employee
complaints, their concerns about safety, and other mat-
ters. Indeed, even if employees failed to honor the non-
disclosure request, their Section 7 rights would remain
intact, since the judge found that the request was merely
a “suggestion” without any threatened imposition of dis-
cipline.
Third, although HR Consultant Odell did not make a
nondisclosure request to employee Navarro, the facts of
the instant case reinforce the notion that Navarro’s Sec-
tion 7 rights would not have been impeded by such a
request. Navarro initiated the meeting with Odell to seek
her assistance because Navarro was uncomfortable with
the temporary sterilizing instructions he had received
from Manager Fellenz. The judge found that in the
meeting with Odell, Navarro “expressed concern for his
job.” The record is devoid of any suggestion that Navar-
ro believed anything said during the Odell meeting inter-
fered with the exercise of his NLRA-protected rights.
Indeed, notwithstanding my colleagues’ reasoning that
today’s decision is necessary to protect the “right” of
employees to discuss “discipline” or “ongoing discipli-
nary investigations” with other employees, Odell—based
on her meeting with Navarro—prevented Navarro from
receiving “corrective action” for his failure to follow the
temporary sterilizing instructions.64 It is not clear that

would require: objective evidence that “the integrity of the investiga-
tion [would] be compromised without confidentiality.”
Indeed, because my colleagues require that employers “proceed on a
case-by-case basis,” the Board would presumably invalidate any preex-
isting standard request for nondisclosure whenever an investigation
involves, for example, workplace fatalities, workplace criminal as-
saults, or workplace sexual abuse. Moreover, it appears that reliance on
a “standard” nondisclosure request for designated types of investiga-
tions would be unlawful even if an actual investigation satisfied the
requirement of “objectively reasonable grounds for believing that the
integrity of the investigation [would] be compromised without confi-
dentiality.” My colleagues dispute this point by stating, “[t]here is
nothing in [their] decision that would preclude employers from devel-
oping standard guidance for human resources professionals, so long as
those policies are consistent with the framework described” in the
majority’s decision “and the considerations it entails.” But to be “con-
sistent with the framework” set forth in the majority’s decision, any
guidance would need to direct human resource officials to make ad hoc
confidentiality determinations “on a case-by-case basis.” I believe
Congress could not have reasonably intended, when enacting our stat-
ute, that mere requests for nondisclosure in workplace investigations
would be unlawful unless employers undertake a de novo case-by-case
evaluation in each and every “particular ongoing investigation” (and,
possibly, each and every interview) of the cumulative requirements
adopted by my colleagues.
64 See text accompanying fn. 22, supra.
Navarro engaged in NLRA-protected activity, but my
colleagues correctly note that Navarro discussed with
coworkers the temporary instrument-sterilizing instruc-
tions.65 There is no evidence—none—that Navarro was
prevented or dissuaded from discussing with coworkers
the temporary instructions, any concerns he had about
potential discipline, or any ongoing investigation.66
Finally, the record demonstrates that the nondisclosure
request at issue here—in the “maybe half a dozen” times
when it was made by Odell—presented no material risk
of interference with the exercise of Section 7 rights be-
cause there is no evidence (1) that the request prevented
any employee from discussing anything with union rep-
resentatives or that there was a denial of Weingarten rep-
resentation in the investigative meeting; (2) that the re-
quest targeted, prevented or penalized specific NLRA-
protected concerted activity that actually occurred; or (3)
that discipline was imposed based on disclosures involv-
ing actual protected concerted activity.
(b) The Majority Gives Insufficient Weight to the
“Business Ends To Be Served” by Nondisclosure Re-
quests in Investigative Meetings. The second half of the
“weighing” and “balancing” required of the Board relates
to the “interest of the employer in operating his business
in a particular manner” and the “business ends to be
served by the employer’s conduct.”67
In my view, my colleagues improperly dispense with
this half of the “delicate task” that is assigned to the
Board. Instead of “weighing” and “balancing” the legit-
imate interest served by making a nondisclosure request
in an investigative meeting against any interference with
NLRA-protected rights, the majority engages in reason-
ing similar to what one commentator has termed “push-
button law.”68 Employee Section 7 rights are the only
interests taken into account, and factors favoring nondis-
closure requests receive no weight at all. Although I
commend and share my colleagues’ salutary purpose of
enforcing the Act, I cannot join their all-or-nothing anal-
ysis, under which reasonable nondisclosure requests are
assigned a value of zero unless an employer satisfies the
high burden of proving, in “a particular ongoing investi-
gation,” on a “case-by-case basis,” that there were “ob-

65 I need not reach nor do I decide whether Navarro engaged in
NLRA-protected conduct in his discussions with coworkers or, if so,
whether the Respondent had knowledge of such conduct.
66 Indeed, as stated above, Odell testified she did not regard her
meeting with Navarro as involving an “investigation” because in her
view, an “investigation” entails speaking with two or more employees,
which she believed was not required in Navarro’s case. See text ac-
companying fn. 16, supra.
67 Erie Resistor, 373 U.S. at 228–229.
68 Clyde W. Summers, Politics, Policy Making, and the NLRB, 6 Sy-
racuse L. Rev. 98 (1955) (footnote omitted).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
jectively reasonable grounds for believing that the integ-
rity of the investigation will be compromised without
confidentiality.” I believe the majority’s approach is
inconsistent with our “duty” to strike a “proper balance
between . . . asserted business justifications” and the po-
tential “invasion of employee rights.”69 Most important
is my colleagues’ failure to recognize the purpose that
the type of nondisclosure request at issue here serves in
the wide variety of workplace investigations employers
are required to conduct.
My colleagues’ failure to attach any value to such re-
quests stands in stark contrast to the record, which pro-
vides the Respondent’s business justification for the re-
quests. Thus, the “Interview of Complainant” form ex-
plains the “reason” for requesting nondisclosure, which
is “when people are talking it is difficult to do a fair in-
vestigation and separate facts from rumors.”70 Odell
testified the request is intended “to keep the investigation
. . . as pure as possible”71 so “there’s not . . . what did
you say, what did I say . . . comparing notes” regarding
“opinions or facts.”72 And the judge concluded that the
nondisclosure request was “for the purpose of protecting
the integrity of the investigation.”73 He stated it was
“analogous to the sequestration rule so that employees
give their own version of the facts and not what they
heard another state.”74
My colleagues’ reasoning is also contrary to the
Board’s own precedent, which confers upon parties the
right, in every case, to move to sequester witnesses dur-
ing Board hearings.75 Indeed, the standard Board seques-
tration order—though considerably longer and more on-
erous than the request or suggestion at issue here—bears
a striking resemblance to the one-sentence nondisclosure
request in the instant case. The Board-approved seques-
tration explanation states, in part:
Counsel has invoked a rule requiring that the witnesses
be sequestered. . . .
The [sequestration] rule . . . means that from this point
on until the hearing is finally closed, no witness may

69 Great Dane, 388 U.S. 26, 33–34.
70 GC Exh. 12.
71 Tr. 193, 259.
72 Tr. 259.
73 Banner Estrella Medical Center, 358 NLRB No. 93, slip op. at 6.
74 Id.
75 See Greyhound Lines, 319 NLRB 554, 554 (1995); see also
Casehandling Manual, Part One, Unfair Labor Practice Proceedings
Sec. 10394.1; Judge’s Bench Book, Sec. 1-300 (Model Sequestration
Order) and Sec. 10-100 et seq. (noting that the Board conforms to the
statutory command to follow the Federal Rules of Evidence, including
Fed.R.Evid. 615, “Exclusion of Witnesses,” “so far as practical”).
discuss with other potential witnesses either the testi-
mony that they have given or that they intend to give.
The best way to avoid any problems is simply not to
discuss the case with any other potential witness until
after the hearing is completed.
Under the rule as applied by the Board, with one excep-
tion, counsel for a party may not in any manner, includ-
ing the showing of transcripts, inform a witness about
the content of the testimony given by a preceding wit-
ness, without express permission of the Administrative
Law Judge. The exception is that counsel for a party
may inform counsel’s own witness of the content of
testimony, including the showing of transcripts, given
by a witness for the opposing side in order to prepare
for rebuttal of such testimony.
I expect counsel to police the rule and to bring any vio-
lation of it to my attention immediately. Also, it is the
obligation of counsel to inform potential witnesses who
are not now present in the hearing room of their obli-
gations under the rule.76
The Board is duty-bound to enforce the NLRA, and
the integrity of Board proceedings is important in every
case. So, too, is the integrity of every workplace investi-
gation conducted by employers, which routinely and pre-
dictably address a broad array of statutory requirements
and, far too often, matters of life or death. The integrity
of workplace investigations has equal importance for
employees. For these reasons, I believe the Board cannot
appropriately attach a weight of zero to the substantial
justification that exists for a nondisclosure request simi-
lar to the one at issue here. If the Board satisfies its duty
to engage in the “delicate” task of “weighing” and “bal-
ancing” the impact on the exercise of Section 7 rights of
such a narrow request, on the one hand, and the “busi-
ness ends to be served by the employer’s conduct,”77 on
the other, I believe the only reasonable conclusion is that
such a request does not violate Section 8(a)(1) of the Act.
(c) The Majority’s Reasoning and Conclusion are not
Supported by Board Case Law. The cases my colleagues
rely on to invalidate the nondisclosure “policy” at issue
here do not support their finding. My colleagues pri-
marily rely on Hyundai America Shipping Agency, 357
NLRB No. 80 (2011), but that case has nothing to do
with the type of limited request HR Consultant Odell
made of individual employees “maybe half a dozen
times” not to discuss the details of their investigative-
meeting conversation. The employer in Hyundai Ameri-

76 Greyhound Lines, 319 NLRB at 554 (emphasis added).
77 Erie Resistor, 373 U.S. at 228–229.
19
BANNER ESTRELLA MEDICAL CENTER
ca unlawfully promulgated “an oral rule prohibiting em-
ployees from discussing with other persons any matters
under investigation by its human resources depart-
ment,”78 which prohibited, for example, one employee’s
“use of ‘blind copy’ emails to alert coworkers to com-
munication . . . [with] management regarding matters
under investigation by the [r]espondent.”79 This type of
“oral rule,” which was a basis for an employee’s dis-
charge in Hyundai, bears no similarity to the limited
nondisclosure “suggestion,” unaccompanied by any
threat of discipline or adverse impact on actual NLRA-
protected activity, in the instant case.
Two other cases relied upon by my colleagues—
Phoenix Transit Systems80 and Mobil Oil Exploration &
Producing81—likewise involve extremely broad confi-
dentiality requirements that were the basis for discipline.
I agree with the violation found in Phoenix Transit be-
cause, unlike the instant case, the employer discharged
an employee for publicizing complaints nearly two years
after an investigation into them had concluded,82 the em-
ployer was found to have retaliated against protected
concerted activity that actually occurred,83 and the judge
reasoned that the employer’s confidentiality requirement
“was simply too broadly interpreted and applied.”84
Along similar lines, Mobil Oil Exploration involved an
employer that, in discharging an employee, relied in part
on a broad commitment to keep an “investigation” confi-
dential, and the discharge was found to constitute retalia-
tion for protected concerted activity that occurred when
the employee “openly discussed the investigation in front
of others.”85 The instant case is distinguishable from
both of these cases in multiple respects.
I also agree with the analysis and result in Caesar’s
Palace,86 where the Board held that the employer lawful-
ly gave employees being interviewed “strict instructions
not to discuss anything related to the investigation ‘with
anybody at any time’ or ‘in any way, shape or form in or
out of the work place.’”87 Specifically, the Board in
Caesar’s Palace relied on the requirement that the Board

78 357 NLRB No. 80, slip op. at 1 (emphasis added).
79 Id., slip op. at 14.
80 337 NLRB 510 (2002).
81 325 NLRB 176 (1997).
82 337 NLRB at 513.
83 Id.
84 Id. at 514. The Board adopted the judge’s findings regarding the
confidentiality requirement and stated that the employer prohibited
discussion “even among the affected employees whom Respondent
initially assembled at a meeting to solicit information concerning the
complaint.” Id. at 510 (emphasis added).
85 325 NLRB at 177.
86 336 NLRB 271 (2001).
87 Id. at 271.
“strike a proper balance between the employees’ rights
and the Respondent’s business justification.”88 Unlike
the instant case, Caesar’s Palace involved a “strict” con-
fidentiality requirement, and employees engaged in pro-
tected concerted activity and were discharged based on
their breach of the confidentiality commitment. Not-
withstanding these facts, the Board upheld the discharges
because the employer had been investigating reports of
drug dealing, theft, and threats to the “lives of fellow
employees,” and the Board found that the facts of that
case (which included “allegations of a management
coverup and possible management retaliation, as well as
threats of violence”) rendered the discharges lawful.
Caesar’s Palace does not reasonably support the majori-
ty’s suggestion that the facts of that case now establish a
threshold showing that, if not made, renders unlawful the
narrow nondisclosure “suggestion” at issue here, which
did not conflict with actual protected concerted conduct,
where there was no threat or imposition of discipline, and
where the nondisclosure request was limited to the inves-
tigative-meeting conversation itself.
As a final matter, my colleagues here improperly dis-
regard the fact that Odell mentioned nondisclosure as a
“request” or “suggestion” that encompassed only the
investigative-meeting conversation itself (not the investi-
gation) and was limited in duration to the time period the
investigation remained ongoing. My colleagues reject
my reliance on what they characterize as “the supposedly
suggestive nature of Odell’s request,” and they quote
Franklin Iron & Metal Corp., 315 NLRB 819, 820
(1994), enfd. 83 F.3d 156 (6th Cir. 1996), for the propo-
sition that “[i]t makes no difference whether the employ-
ees were ‘asked’ not to discuss their wage rates or or-
dered not to do so.” As demonstrated by the foregoing
quotation, Franklin Iron has no application here because
it involved employees who were asked “not to discuss
their wage rates.” Longstanding Board law establishes
that any restriction—whether requested or ordered—on
the discussion of wage rates constitutes a per se violation
of the Act given the central role played by wages in Sec-
tion 7 activity, and there is no legitimate employer justi-
fication for such a restriction. As indicated above, the
narrow nondisclosure request at issue here is completely
dissimilar from a restriction on wage discussions, as to
both its nonexistent or, at most, slight impact on Section
7 rights and the reasonable justifications that support it.
3. The Majority’s Test is Unrealistic and Undermines
the Interests of Employers and Employees Alike. I be-
lieve my colleagues, though well intentioned, adopt an
unrealistic standard that will produce immense difficulty

88 Id. (emphasis added).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
for employers, to the detriment of the very employees my
colleagues mistakenly believe they are helping in today’s
decision.
The biggest practical problem with the new standard
relates to the impossibility of administering it. Because
the majority requires employers to prove the need for
nondisclosure in any “particular ongoing investigation”
on a “case-by-case basis,” employers may not adopt any
internal guidelines that identify types of investigations
when employee-participants should consistently be asked
not to disclose details regarding investigative-meeting
conversations. Nothing along these lines may be decided
in advance by employers.89 Instead of establishing work
force investigation procedures that can be consistently
applied throughout an organization—at least regarding
certain categories of investigations, for example—the
Board requires employers to discard consistency in favor
of a haphazard, ad hoc patchwork of “just-in-time”
decisionmaking about whether or when nondisclosure
requests should be made.
Nor is it practical or reasonable for employers to limit
nondisclosure requests to those investigations that have
nothing to do with potential discipline. Most investiga-
tions take place because the employer does not know
what occurred and whether discipline might be warrant-
ed. For example, one might believe discipline is not in
the offing when a retail store investigates the sexual as-
sault of a customer in the store’s parking lot at night

89 The majority makes this prohibition explicit. They state: “The
employer cannot reflexively impose confidentiality requirements in all
cases or in all cases of a particular type” (emphasis added). This “par-
ticular type” prohibition is especially difficult for employers to admin-
ister. Moreover, I suspect the Board itself, when attempting to maintain
consistency while applying the majority’s standard in future cases, will
need to recognize that confidentiality is predictably necessary in certain
types of investigations—for example, those involving workplace fatali-
ties, criminal assaults, or sexual abuse (to name only three examples).
Ironically, if the Board achieves such consistency from case to case,
this will require employers not to proceed case by case. See also fn. 63,
supra.
My colleagues’ prohibition against reasonable employer judgments
about the need for nondisclosure in “cases of a particular type” is also
premised on the false assumption that each and every case is so unique
that it precludes the development of reasonable categories in advance
(by employers) or after the fact (by the Board). This proposition is
contradicted by the Board’s own experience with Weingarten represen-
tation, for example, where the Board, with Supreme Court approval,
adopted a requirement that employees in unionized work settings must
be afforded a right to request representation only in “cases of a particu-
lar type” —namely, those “where the employee reasonably believes
the investigation will result in disciplinary action.” Weingarten, 420
U.S. at 257. The existence of the Weingarten standard, which includes
caveats and qualifications recognized by the Supreme Court more than
40 years ago (id. at 256–260), demonstrates that every workplace inves-
tigation is not so inherently unique as to defy the formulation of rea-
sonable requirements in advance for “cases of a particular type.”
when the store was closed. What happens if the employ-
er requests nondisclosure when interviewing employees
in this “non-disciplinary” investigation, but it turns out
that (i) three employees had personal relationships with
the assault victim; or (ii) one employee’s failure to re-
place burned-out lights in the parking lot may have been
a contributing factor; or (iii) an employee actually com-
mitted the assault, which comes to light based partly on
the employer’s investigation and partly on information
supplied by the police? Finally, even if an employer
successfully identified “discipline” investigations and
made nondisclosure requests only in other
(nondisciplinary) investigations, this would produce the
incongruous result of safeguarding the integrity of the
least important investigations from the perspective of
employees, while making it unlawful to safeguard the
integrity of the most important investigations from the
perspective of employees. I believe this outcome is un-
supported by the NLRA, could not reasonably have been
intended by Congress, and plainly undermines other em-
ployment statutes unrelated to the NLRA.
In the best case, I believe my colleagues create a Hob-
son’s Choice for employers, who must decide whether (i)
to conduct investigations without taking any reasonable
measures to prevent employee-witnesses from engaging
in discussions that predictably will damage the investiga-
tion; or (ii) to have every individual supervisor and man-
ager make a case-by-case determination, regarding every
“particular ongoing investigation,” about whether evi-
dence may be adduced of “objectively reasonable
grounds for believing that the integrity of the investiga-
tion will be compromised without confidentiality” war-
ranting a request for nondisclosure of investigative-
meeting conversations, where the legality of the request
will be known only after years of NLRB litigation, which
may result in Board-ordered rescission of discharges or
discipline and (depending on the circumstances) other
remedies that may relate to other changes made as a re-
sult of the investigation.
In the worst cases—which hopefully will be few in
number—the restrictions imposed in this case will not
merely undermine important investigations, they will
adversely affect efforts to prevent or address workplace
violence, to enforce restrictions against discrimination
and harassment, to avoid workplace accidents and inju-
ries, and to make important business decisions.
I have expressed my full support of the Act’s aggres-
sive enforcement when the evidence proves that two or
more employees have engaged in “concerted” activities
21
BANNER ESTRELLA MEDICAL CENTER
for the “purpose of . . . mutual aid or protection.”90
However, absent such evidence, I have opposed the
broad application of NLRA-based restrictions on work-
place investigations, and I made the following observa-
tion:
[I]t undermines the policies and purposes of other im-
portant federal, state and local statutes to broadly apply
the NLRA’s “process” restrictions on top of the non-
NLRA substantive and procedural requirements impli-
cated in a single employee’s individual complaint. Em-
ployers will need to focus on limiting and narrowly tai-
loring their investigations and discussions with em-
ployees, rather than focusing on the substantive legal
issues relating to individual complaints. Employers will
need to anticipate—consistent with the Respondent’s
experience—that one or two questions may result in
years of Board litigation, separate from the complex
non-NLRA laws and procedures that actually govern
the employee complaint. Extensive research is not
needed to conclude that these problems will delay or
obstruct investigations and inhibit the vigor with which
they can be carried out. Necessarily, these problems
will operate to the detriment of employees.91
The Board’s paramount responsibility is to enforce the
NLRA. However, the Supreme Court has instructed us
to acknowledge the “entire scope of Congressional pur-
pose,” which requires “careful accommodation of one
statutory scheme to another, and it is not too much to
demand of an administrative body that it undertake this
accommodation without excessive emphasis upon its
immediate task.”92 Most important is the need, when
addressing the type of nondisclosure request that is pre-
sented here, to “strike a proper balance between . . . em-

90 Fresh & Easy, 361 NLRB No. 12, slip op. at 22 (Member
Miscimarra, dissenting in part).
91 Id. (emphasis in original and emphasis added).
92 Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942).
ployees’ rights and the Respondent’s business justifica-
tion.”93 The Board is also required to adopt standards
that can be applied so that parties can have “certainty
beforehand” and “reach decisions without fear of later
evaluations labeling . . . conduct an unfair labor prac-
tice.” First National Maintenance Corp. v. NLRB, 452
U.S. 666, 678–679, 684–686 (1981). Under the majori-
ty’s test, such certainty is achievable only if employers
never request nondisclosure from employee witnesses
regarding the subject matter of any investigative meeting.
In my view, such an outcome does not strike a “proper
balance” between NLRA and non-NLRA legal obliga-
tions, it is not reasonably supported by the NLRA, it is
contrary to the Board’s own treatment of witness nondis-
closure in our proceedings, and it is ill-advised as a mat-
ter of public policy.
Conclusion
I believe my colleagues’ finding that Section 8(a)(1)
renders unlawful the Respondent’s nondisclosure request
during “maybe half a dozen” workplace investigations is
unsupported by the record evidence. Moreover, even if
the Respondent routinely made nondisclosure requests in
workplace investigations, I believe the majority’s invali-
dation of such a request reflects a failure to properly bal-
ance Section 7 rights against the legitimate reasons that
exist for such a request.
Accordingly, as to these issues, I respectfully dissent.
Dated, Washington, D.C. June 26, 2015
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD

93 Caesar’s Palace, 336 NLRB at 271 (emphasis added); Great
Dane, 388 U.S. at 33–34; see also Erie Resistor, 373 U.S. at 229.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
Appendix A – Banner Health “Interview of Complainant” Form
(excluding notes specific to James Navarro meeting) (Gen. Counsel’s Exh. 12)
Banner Health
FOR HUMAN RESOURCES USE ONLY
Interview of Complainant (Emphasis on details)
CONFIDENTIAL
INVESTIGATION
EEO/Affirmative Action Dept.
Date: Employee: Investigator:
Introduction for all interviews:
 Explain purpose of the investigation. Example: “I am investigating a (your) complaint or inappropriate be-
havior.”
 This is a confidential interview and I will keep our discussion confidential except as require[d] by law, or
Banner policy or as necessary to conduct this investigation. I ask you not to discuss this with your cowork-
ers while this investigation is going on, for this reason, when people are talking it is difficult to do a fair in-
vestigation and separate facts from rumors.
 Matter under investigation is serious, and the company has a commitment/obligation to investigate this
claim.
 No conclusion/recommendation will be made until all of the facts have been gathered and analyzed.
 Any attempt to influence the outcome of the investigation, any retaliation against anyone who participates,
any provision of false information or failure to be forthcoming can be the basis for corrective action up to
and including termination.
 Please remember there is no tolerance for retaliation. if you or anyone else feels they experience retaliation
as a result of this investigation you should tell your HR dept. or myself immediately.
1. Describe what occurred.
a. When did this occur?
b. Where did this occur?
c. Who was present?
2. What did you do in response? (What was the reaction of complainant to the behavior?)
3. Did you tell anyone about this prior to this complaint?
a. When?
b. Who?
4. Do you have any documentation (emails, texts, recordings, pictures, facebook, etc.)
5. Did you discuss the matter with any of your co-workers?
6. What compelled you to bring it forward at this time?
7. Have you witnessed any other behaviors that you would consider inappropriate?
8. Is there anything else you would like us to know?
23
BANNER ESTRELLA MEDICAL CENTER
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain or apply the provision in our
confidentiality agreement that contains the following
language “Private employee information (such as sala-
ries, disciplinary action, etc.) that is not shared by the
employee.”
WE WILL NOT maintain or apply a policy of requesting
employees not to discuss ongoing investigations of em-
ployee misconduct.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights set forth above.
WE WILL rescind the provision in the confidentiality
agreement described above, and advise employees in
writing that the provision is no longer being maintained.
BANNER HEALTH SYSTEM D/B/A
BANNER ESTRELLA MEDICAL CENTER
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-023438 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or
by calling (202) 273-1940.