Theater of the Absurd

Theater of the Absurd
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. 14
(emphasis added in the dissent)
In other words, the Board can require confidentiality for its own purposes,
but denies that privilege to employers. Member Miscimarra’s dissent
continued by saying, “I believe the Board cannot appropriately attach a
weight of zero to the substantial justification that exists for a nondisclosure
request similar to the one at issue here.” 15 As the Board’s decisions in
Banner Health make clear, “a weight of zero” seems to be exactly what the
NLRB’s activist majority attaches to the legitimate interests of employers in
workplace investigations.
Scene II. Boeing
A reasonable confidentiality policy at another company, in this case
Boeing, was also found to run afoul of the NLRA. 16 An employee of the
company filed a complaint against her
supervisor, and following the investigation
of her complaint, the employee
communicated information about her
case to some of her colleagues. Boeing’s
policy required employees involved in
an investigation to sign a confidentiality
agreement, which directed them not to
disclose confidential human resources
investigations because of their sensitive
nature. As a result, the company disciplined the employee upon learning
of her disclosures, which led to an unfair labor practice charge (known as
a ULP) being filed with the NLRB.
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