Apogee Retail LLC d/b/a Unique Thrift Store, (2019)

Date16 December 2019
368 NLRB No. 144
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.
Apogee Retail LLC d/b/a Unique Thrift Store and
Kathy Johnson. Cases 27–CA191574 and 27–
December 16, 2019
The issue in this case is wh ether the Respondent law-
fully maintained two written rules, one requiring employ-
ees to “maintain confidentiality” regarding workplace in-
vestigations into “illegal or unethical behavior” and the
other prohibiting “unauthorized discussion” of investiga-
tions or interviews “with other team members.” We over-
rule the Board’s approach to investigative confidentiality
rules set forth in Banner Estrella Medical Center, 362
NLRB 1108 (2015), enf. denied on other grounds 851 F.3d
35 (D.C. Cir. 2017), which demands a case-by-case deter-
mination of whether confidentiality can be required in a
specific investigation. Applying the test for facially neu-
tral workplace rules established in Boeing Co., 365 NLRB
No. 154 (2017), we hold instead that investigative confi-
dentiality rules are lawful and fall within Boeing Category
1—types of rules that are lawful to maintainwher e by
their terms the rules apply for the duration of any investi-
gation. However, the rules at issue in this case are not
limited on their face to the duration of any investigation.
As such, they fall within Boeing Category 2. We therefore
find that a determination of their legality necessitates a re-
mand of this case to the Region for further proceedings as
to whether the Respondent has one or more legitimate jus-
tifications for requiring confidentiality even after an in-
vestigation is over, and if so, whether those justifications
outweigh the effect of requiring post-investigation confi-
dentiality on employees’ exercise of their rights under
Section 7 of the National Labor Relations Act.1
The Respondent, a State of Washington corporation
with a headquarters in Bellevue, Washington, is en gaged
in the operation of retail stores selling second-hand
1Upon charges filed by Kathy Johnson on January 20 and May 3,
2017, the General Counsel issued a complaint and notice of hearing al-
leging that the Respondent violated Sec.8(a)(1) by maintaining two
handbook provisions. The Respondent filed an answer denying the com-
mission of any unfair labor practices and asserting affirmative defenses.
Following the issuance of Boeing, supra, the hearing was rescheduled
and ultimately postponed indefinitely. On August 30, 2018, the General
Counsel issued an amended consolidated complaint and notice of
clothing and other items in locations throughout the
United States, including Aurora, Colorado (a location that
has since closed). During the 12-month period ending on
October 18, 2018, the Respondent, in conducting its busi-
ness, derived gross revenue in excess of $500,000 and pur-
chased and received at its Aurora, Colorado facility goods
and services valued in excess of $5000 from points located
directly outside the State of Colorado. The Respondent
has been an employer engaged in commerce within the
meaning of Section 2(2), (6),and (7) of the Act.
At all material times, the Respondent has maintained the
following employee rules, contained in two separate pub-
lications and disseminated to all employees nationwide.
The first provision is contained in the Respondent’s Code
of Business Conduct and Ethics and provides in relevant
Report Illegal or Unethical Behavior
Team members are expected to cooperate fully in inves-
tigations and answer any questions truthfully and to the
best of their ability. Reporting persons and those who
are interviewed are expected to maintain confidentiality
regarding these investigations. [Emphasis added.]
The second provision is contained in Respondent’s Loss Pre-
vention Policy and states in relevant part:
The following list, neither all-inclusive nor exhaustive,
are examples of behaviors that can have an adverse ef-
fect on the company and may lead to disciplinary action,
up to and including termination: . . . . Refusing to cour-
teously cooperate in any company investigation. This in-
cludes, but is not limited to, unauthorized discussion of
investigation or interview with other team members. . . .
[Emphasis added.]
The Respondent has not disciplined any employee for violat-
ing these rules.
The Respondent asserts the following business reasons
for maintaining the above provisions:
The retail industry experiences billions of dollars in
theft each year. A significant portion of that theft
involves various types of employee theft requiring
diligent and effective investigations.
hearing. On September 13, 2018, the Respondent filed an answer deny-
ing the commission of any unfair labor practices and asserting affirma-
tive defenses. On October 18, 2018, the Respondent and the General
Counsel filed a joint motion to waive a hearing and decision by an ad-
ministrative law judge and to transfer the proceeding to the Board for a
decision based on the stipulated record. On December 13, 2018, the
Board granted the parties’ joint motion. Thereafter, the General Counsel
and the Respondent filed briefs.
Employees have expressed reluctance to cooperate
in investigations out of fear of being labeled a
“whistleblower,” “rat” or “snitch.” This hinders the
ability of the employer to act quickly and deci-
[In c]ases involving multiple suspects, [the rules]
prevent[] the potential leak of critical investigative
information to other potential suspects.
Proving false allegations or claims made in bad
faith is difficult to do when the employer cannot get
to the factual truth wh en people discuss what they
know, believe or perceive what other witnesses say
during investigations.
The rule against required confidentiality of work-
place investigations can place employees and the
company at unnecessary risk, including physical
Allowing a company better controls to create and
sustain stronger safe harbors for employees when
reporting serious issues that require an investiga-
tion[] is necessary; prohibiting the employer from
requiring confidentiality hampers effective and
thorough investigations.
Often, investigation yields facts later on in the pro-
cess that would have indicated that confidentiality
should have been required at the outset of the inves-
Employees interviewed during investigations al-
most always ask for confidentiality.
The Respondent further asserts that it has conducted
multiple investigations in which the inability to require
confidentiality has hindered the investigation. These in-
vestigations include cases in which (1) the Respondent
was unable to substantiate allegations because the infor-
mation gathered was not credible after “the parties were
2In the joint stipulation, the General Counsel took “no position on
the veracity” of the Respondent’s asserted business justifications and ex-
amples of the lack of confidentiality impeding the Respondent’s investi-
gations, asserting that they are “notrelevantto the determination of
whether Respondent’s maintenance of the rules” violates the Act. In its
brief to the Board, the General Counsel asserts that the Employer’s busi-
ness justifications for maintaining workplace investigation confidential-
ity rules “reflect interests that are common to all employers.”
3 By “similar to those at issue here,” we mean rules that require par-
ticipants in an investigation to maintain the confidentiality of the inves-
tigation and/or prohibit participants from discussing the investigation or
interviews conducted in the course of the investigation. That is what an
either coached or they discussed ahead of time what they
would say,” or employees took advantage of the lack of
confidentiality to manipulate the outcome; (2) accusers
openly discussed and attempted to influence others to
make similar statements; (3) employees were put in un-
comfortable situations or feared repercussions due to lack
of confidentiality when a manager was under investiga-
tion; (4) a manager accused of favoritism engaged in
threatening or intimidating behavior, and the employee re-
ceiving preferential treatment made disparaging com-
ments to customers based on knowledge of the accusation
and accusers; (5) details of a conversation with employee
relations were shared with multiple employees and dam-
aged an employee’s reputation to the point that he/she was
unable to return to work; (6) lack of confidentiality al-
lowed an individual to threaten retaliatory behavior, in-
cluding the threat of physical assault if the coworker did
not support the accused in an investigation; and (7) an em-
ployee resigned rather than face retaliation as a result of
reporting a situation when not assured of confidentiality.2
In considering whether the Respondent’s rules are law-
ful, we must first determine the appropriate analytical
framework. In recent years, the Board has followed the
case-by-case approach to investigative confidentiality
rules set forth in Banner Estrella Medical Center, supra.
As explained below, we find the Banner Estrella standard
deficient in several important respects, and we overrule it.
We find that investigative confidentiality rules are
properly analyzed under the Board’s test for facially neu-
tral workplace rules established in Boeing Co., supra. Un-
der that standard, we conclude that investigative confiden-
tiality rules similar to those at issue here but that by their
terms apply only to open investigations are categorically
lawful under Boeing, but investigative confidentiality
rules similar to those at issue here and not limited on their
face to open investigations belong in Boeing Category 2,
requiring individualized scrutiny in each case as to
whether any post-investigation adverse impact on NLRA-
protected conduct is outweighed by legitimate justifica-
investigative confidentiality rule just is, by its very nature. Thus, our
holding does not extend to rules that would apply to nonparticipants, or
that would prohibit employeesparticipants and nonparticipants alike
from discussing the event or events giving rise to an investigation (pro-
vided that participants do not disclose information they either learned or
provided in the course of the investigation). And our holding certainly
does not extend to rules that would prohibit employees from making re-
ports to, or filing charges or complaints with, government agencies. Ac-
cordingly, the dissent is incorrect when she claims that under our deci-
sion today, “any rule requiring investigative confidentiality during the
course of an investigation is permissible, no matter how it is written.”
We also reject her apparent view that an investigative confidentiality rule

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