As anticipated, in one of the last decisions before the end of Member McFerran’s term, the NLRB issued another important opinion.  Reverting back to precedent that preceded a 2015 decision, the Board, in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), held that an employer’s confidentiality restrictions for information relating to workplace investigations are categorically lawful under Boeing where such rules explicitly apply for the duration of an investigation.  The Board’s decision overruled a 2015 case that demanded a case-by-case determination of whether confidentiality is required in a particular investigation.

With the wave of workplace complaints and employer-initiated investigations on the rise in recent years, the Board’s Unique Thrift Store decision provides helpful clarity for employers looking to ensure confidentiality of information revealed during the pendency of an open investigation.

Factual Background

Unique Thrift Store promulgated two investigative confidentiality rules and disseminated copies of the rules to its employees:

  • One rule required employees to “cooperate fully in investigations and answer any questions truthfully and to the best of their ability,” and indicated that both reporting persons and interviewees are “expected to maintain confidentiality.”
  • The other rule listed behaviors that could result in disciplinary action, which included the “unauthorized discussion” of investigations or interviews “with other team members.” Unique Thrift Store had never disciplined an employee for violating those rules, but asserted that the provisions were necessary for a multitude of business reasons.

Board History:  From Banner to Boeing

In its 2015 Banner Estrella opinion, the Board addressed whether employers could lawfully impose such confidentiality restrictions on employers – more specifically, whether employers could lawfully instruct employees to refrain from discussing workplace investigations.  Banner Estrella Medical Center, 362 NLRB 1108 (2015), enf. denied on other grounds 851 F.3d 35 (D.C. Cir. 2017).  In finding that such instructions restricted employees’ exercise of their rights under Section 7 and thus violated Section 8(a)(1), the Board “placed the burden on the employer to determine, on a case-by-case basis, whether its interests in preserving the integrity of an investigation outweighed presumptive employee Section 7 rights.”  (Emphasis added.)  In other words, the Board placed the burden on the employer to set forth specific evidence indicating that a lack of confidentiality would interfere with the investigation.  Only if the employer satisfied that showing could it lawfully mandate confidentiality among its employees.

After Banner Estrella Medical Center, the Board established a balancing test in Boeing Company, 365 NLRB No. 154 (2017) to analyze facially-neutral rules that may reasonably be construed to interfere with employees’ Section 7 rights.  Under the Boeing test, the Board must balance the rule’s potential impact on employees’ rights against the employer’s legitimate justifications associated with the rule.  As a result of that analysis, the Board would designate the rule at issue in one of three categories:  (i) rules that are always lawful; (ii) rules that may be unlawful, depending on the circumstances; and (iii) rules that are plainly unlawful.  Since Boeing, the Board has applied the three-category approach to myriad employer-promulgated workplace rules, to varying results.

Rejection of Banner Estrella and Application of Boeing

A majority of the current Board, comprised of Chairman Ring and Members Kaplan and Emanuel, rejected the approach set forth in Banner Estrella because it failed to balance employee and employer interests, and instead wrongfully imposed a burden on employers to establish that their interests in obtaining confidentiality outweighed those of their employees.

In rejecting the Banner Estrella test, the Board instead faithfully applied the balancing test set forth in Boeing Company, concluding that investigative confidentiality rules of this nature are “Category One” lawful to the extent those rules apply only during open investigations.  Although the Board recognized that the two confidentiality provisions at issue could potentially interfere with the exercise of Section 7 rights, it nevertheless found that the impact was relatively slight in comparison to the employer’s compelling business justifications, which included, among other things, preventing theft, protecting employee privacy, and ensuring the integrity of investigations.

Ultimately, however, the majority remanded the case, as the rules at issue did not explicitly limit confidentiality to the duration of the investigation.  According to the majority, employees could reasonably interpret such rules to apply beyond the duration of the investigation and, therefore, a remand for further consideration was appropriate.

Member McFerran Dissents

In one of her final published dissents, Member McFerran criticized the majority for again choosing to reverse precedent “without notice or good reason.”  Member McFerran expressed great concern that employers are now permitted to “hold gag rules over their workers if the rule is linked to an open investigation of workplace misconduct.”  According to Member McFerran, there is no getting around the fact that employer “gag rules” of this sort infringe upon employees’ Section 7 rights.


Confidentiality in workplace investigations is important.  It allows the employer to assess witnesses without fear of taint to the process that can come from unrestricted discussion. As anyone charged with conducting a workplace investigation knows, witness recollection is imperfect at best and so trying to preserve it is good practice.  What is often lost in the discussion of workplace investigation is that someone may be disciplined or terminated as a result:  it is better for all concerned if the investigation is thorough and unimpeded by workplace discussion.

Employers can now rest-assured that facially-neutral rules requiring workplace confidentiality during the term of an open investigation are lawful under the NLRA.  Whereas under Banner Estrella, the burden was placed on the employer to justify its rule, now the Board has blessed such rules without necessitating a case-by-case review.

To be sure, this decision comes at an interesting time in the wake of the #MeToo movement, as a number of states have passed (or have considered passing) legislation that will impact the enforceability of workplace non-disclosure provisions, particularly in the context of the settlement of workplace sexual harassment claims.  The enacted and proposed legislation reflect recent pressure by legislators and the public at large to ensure complainants and victims are not “silenced.”  A key distinction between the recent spate of these types of laws restricting public disclosure by #MeToo victims as part of settlement agreements and the Board’s decision here is that the Unique Thrift Store decision applies only during the term of an investigation – not forever.  As a result, Unique Thrift Store appropriately reflects the Board’s determination that confidentiality is necessary for an employer investigation to achieve the desired results of preventing or remediating potential civil or criminal violations in the workplace, such as discrimination, retaliation, theft or violence.

Finally, as we have discussed in recent posts (see here and here), the criticism that precedent is being changed without notice and good reason rings somewhat hollow.  The last several years have seen significant changes to longstanding precedent with no notice.  As for the existence of “good reason,” one fundamental policy underlying the National Labor Relations Act is stability in labor relations.  One can argue that the constant change of precedent hardly makes for stability or good labor relations.

It is likely that the Board will issue more decisions in the coming days, as Member McFerran’s term just ended on Monday, December 16th.  We will, as always, keep you apprised of any new developments.

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.