Securitas Security Services USA

National Labor Relations Board - Board Decisions

Apr 14, 2020

369 N.L.R.B. 57 (N.L.R.B. 2020)

369 NLRB No. 57
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.
Securitas Security Services USA and Ryan Patrick
Murphy. Cases 16‒CA‒176006 and 16‒CA‒
183494
April 14, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On September 28, 2017, Administrative Law Judge
Donna N. Dawson issued a decision in this proceeding.
On November 21, 2018, the National Labor Relations
Board remanded the case to the judge for the purpose of
reopening the record, if necessary, and preparing a supple-
mental decision addressing the complaint allegations un-
der Boeing Co., 365 NLRB No. 154 (2017). On August
30, 2019, the judge issued the attached supplemental de-
cision. The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering brief.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Decision
and Order.
The single remaining issue in this case is whether the
Respondent violated Section 8(a)(1) of the Act by prohib-
iting an employee from discussing the Respondent’s inter-
nal investigations.1 On April 26, 2016,2 Charging Party
Ryan Patrick Murphy, an employee of the Respondent,
witnessed an incident involving another employee and a
supervisor, which resulted in the employee filing an inter-
nal racial discrimination complaint against the supervisor.
On May 5, the Respondent’s Branch Manager Joe Shuler
and Human Resources Manager Tennille Gray inter-
viewed Murphy about the incident. Shuler and Gray
“orally instructed [Murphy] not to discuss the investiga-
tion or the incident with anyone.” Murphy subsequently
requested that Gray clarify the scope of the instruction.
On May 9, Gray replied to Murphy’s request for clarifica-
tion in two substantially similar emails stating:
[A]ll [employees]3 are barred from talking during the
time of the investigation in any circumstance. After the
1 On August 5, 2019, the judge granted the General Counsel’s motion
to sever complaint allegations pertaining to the Respondent’s no-record-
ing, no-photography, and no-gossip rules, which the General Counsel no
longer alleges to be unlawful.
2 Dates below are in 2016, unless otherwise specified.
3 Only one of Gray’s two May 9 emails used the word “employees”.
investigation is concluded—if any one starts conversing
about it and those conversations become a distraction to
the workplace anyone involved in conversing could face
disciplinary action in accordance with the handbook.
In her supplemental decision, the judge reasoned that
Boeing did not alter the balancing test applicable to inves-
tigative confidentiality policies set forth in Banner Es-
trella Medical Center, 362 NLRB 1108 (2015). There, the
Board had held that “an employer may restrict . . . discus-
sions [of ongoing disciplinary investigations] only where
the employer shows that it has a [particularized] legitimate
and substantial business justification that outweighs em-
ployees’ Section 7 rights.” Id. at 1109‒1110. Applying
that standard, the judge concluded that the Respondent
had not made the requisite particularized showing and ac-
cordingly had violated the Act by prohibiting discussion
of its internal investigations.
On December 16, 2019, while the Respondent’s excep-
tions to the judge’s supplemental decision were pending
before the Board, the Board overruled Banner Estrella and
held that investigative confidentiality rules that by their
terms apply only for the duration of any investigation are
categorically lawful under Boeing. Apogee Retail LLC
d/b/a Unique Thrift Store, 368 NLRB No. 144, slip op. at
1 (2019). Specifically, the Board found that “justifications
associated with investigative confidentiality rules applica-
ble to open investigations will predictably outweigh the
comparatively slight potential of such rules to interfere
with the exercise of Section 7 rights.” Id., slip op. at 8.
Accordingly, the Board held that investigative confidenti-
ality rules limited to open investigations fall into Boeing
Category 1(b).4
Applying Apogee, we find that the Respondent’s inves-
tigative confidentiality instruction to Murphy does not vi-
olate the Act as alleged by the General Counsel. Specifi-
cally, the complaint alleged that the Respondent violated
Section 8(a)(1) when it “prohibited an employee from dis-
cussing internal investigations,” and, further, the General
Counsel has consistently maintained that the conduct at is-
sue was the Respondent’s instruction to Murphy not to dis-
cuss the internal investigation. It is clear from the emails
Gray sent Murphy on May 9, however, that the Respond-
ent’s confidentiality instruction to Murphy was expressly
limited to “the time of the investigation.”5 Because the
specific conduct alleged and litigated as unlawful by the
4 Boeing Category 1(b) includes the types of rules that the Board has
designated as lawful to maintain because the justifications associated
with such rules predictably outweigh their potential adverse impact on
employees’ exercise of their protected rights under the NLRA. See, e.g.,
LA Specialty Produce Co., 368 NLRB No. 93, slip op. at 2 & fn. 2 (2019).
5 We also find that an objectively reasonable employee would under-
stand the second part of Gray’s May 9 email clarification not as part of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
General Counsel was the Respondent’s maintenance of an
investigative confidentiality policy limited to the term of
the investigation—a policy of a type found categorically
lawful to maintain in Apogee—we conclude that the Re-
spondent did not violate the Act as alleged.
The Board further stated in Apogee that its holding
“does not extend to rules that would apply to nonpartici-
pants [in an investigation], or that would prohibit employ-
ees—participants and nonparticipants alike—from dis-
cussing the event or events giving rise to an investigation
(provided that participants do not disclose information
they either learned or provided in the course of the inves-
tigation).” 368 NLRB No. 144, slip op. at 2 fn. 3. Here,
the judge’s description of the Respondent’s policy would
permit an inference that the policy might have applied to
nonparticipants in the investigation or prohibited employ-
ees from discussing the incident that gave rise to the in-
vestigation. But the General Counsel’s complaint does
not allege that the Respondent’s policy was unlawfully
overbroad in these respects, and no such issues have been
litigated in this proceeding. It is well settled that the Board
may find and remedy a violation even in the absence of a
specific allegation in the complaint if the issue is closely
related to the subject matter of the complaint and has been
fully and fairly litigated. See, e.g., Wal-Mart Stores, Inc.,
368 NLRB No. 146, slip op. at 1 fn. 3 (2019) (citing Per-
gament United Sales, Inc., 296 NLRB 333, 334 (1989),
enfd. 920 F.2d 130 (2d Cir. 1990)). Here, however, noth-
ing about the litigation of this case put the Respondent on
notice that it should have clarified or specifically justified
aspects of its policy’s scope. Accordingly, because these
issues have not been fully and fairly litigated, we do not
decide whether the Respondent’s policy may have been
unlawfully overbroad in restricting employee discussion
of incidents underlying its internal investigations or dis-
cussion by employees not involved in those investigations.
See, e.g., Laborers’ International Union of North Amer-
ica, Local Union No. 91 (Scrufari Construction Co.), 368
NLRB No. 40, slip op. at 1 & fn. 2 (2019) (declining to
find violation on theory not advanced in complaint, which,
even if closely connected to subject matter of complaint,
was not fully litigated) (citing Pergament United Sales,
296 NLRB at 334).
the Respondent’s confidentiality policy, but as a reminder that post-in-
vestigation discussion of the investigation, while not banned under the
confidentiality policy, would remain subject to the Respondent’s gener-
ally applicable rules against disruptive, inappropriate, or abusive work-
place conversations. See LA Specialty Produce, above, slip op. at 2
(analysis of work rules under Boeing “should be determined by reference
to the perspective of an objectively reasonable employee who is aware
of his legal rights but who also interprets work rules as they apply to the
everydayness of his job”) (internal quotation marks omitted).
ORDER
IT IS ORDERED that the consolidated complaint in Cases
16‒CA‒176006 and 16‒CA‒183494 is dismissed.
Dated, Washington, D.C. April 14, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Robert Perez, Esq. and Maxie Gallardo, Esq., for the General
Counsel.
Maurice Baskin, Esq. (Littler Mendelson, PC), of Washington,
DC, for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
DONNA N. DAWSON, Administrative Law Judge. On Septem-
ber 28, 2017, I issued a decision in which I found that the General
Counsel had established that some of the challenged work rules
violated Section 8(a)(1) of the Act.1 Securitas Security Services
USA (Respondent) and the General Counsel both filed excep-
tions to my decision. While those exceptions were pending be-
fore the Board, the Board issued its decision in Boeing Co., 365
NLRB No. 154 (2017), reconsideration denied 366 NLRB No.
128 (2018). In that decision, the Board modified the standards
for determining whether an employer’s work rules interfere with
employees’ rights under the Act in violation of Section 8(a)(1).
On November 16, 2018, the Board issued an order remanding to
me certain of Respondent’s work rules contained in the consoli-
dated complaint issued on April 7, 2017, at paragraph 7 (no-re-
cording and no-camera), paragraph 9 (prohibited discussion of
internal investigations), and paragraph 10 (no-gossip).2 On No-
vember 21, 2018, the Board issued a corrected order remanding
1 The Charging Party, Ryan Patrick Murphy, filed charges on May 9
and September 16, 2016. The General Counsel filed orders consolidating
cases and amended consolidated complaints on November 30, 2016, and
April 7, 2017. (GC Exh. 1(e) and 1(m).)
2 Previously, on July 6, 2017, I granted the parties’ joint motion to
sever allegations and approve a partial bilateral informal settlement
agreement executed by the parties on June 29, 2017. Pursuant to that
agreement and subsequent order, complaint allegations at par. 6 (confi-
dentiality), par. 8 (proprietary information), and the portion of par. 7 al-
leging that Respondent maintained an unlawful social networking policy
SECURITAS SECURITY SERVICES USA 3
those issues to me “for the purpose of reopening the record, if
necessary, and the preparation of a supplemental decision ad-
dressing the complaint allegations (including allegations regard-
ing the Respondent’s recording and camera policies) under Boe-
ing and setting forth credibility resolutions, findings of fact, con-
clusions of law, and a recommended order.”
I offered the parties an opportunity to participate in a supple-
mental hearing or otherwise re-open the record to present any
additional evidence they believed was relevant to reconsidera-
tion of the work rules under the Boeing standards. In response,
both parties opposed the reopening of the record, contending that
the presentation of additional evidence was not necessary, and
stated their positions. In addition, the General Counsel included
a motion to sever certain of the complaint allegations pertaining
to the no-recording, the no-photography, and the no-gossip rules
in the complaint at paragraphs 7 and 10. In doing so, the General
Counsel determined that those rules are lawful under Boeing. Of
course, Respondent did not object. On August 5, 2019, I issued
an order granting the General Counsel’s request to sever and re-
mand to the Region for appropriate action. I also gave the parties
an opportunity to file supplemental briefs on or before August
19, 2019.
Based on the August 5 order, the only remaining allegation
before me for reconsideration is set forth at complaint paragraph
9 that: On or about May 5, 2016, Respondent prohibited an em-
ployee from discussing internal investigations.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs and po-
sition statements filed by the parties, I make the following find-
ings of facts and conclusions of law.
FINDINGS OF FACT
I. JURISDICTION
Respondent owns and operates a corporation with an office
and place of business in Austin, Texas, where it provides security
services to other companies. In conducting its operations in
2015, Respondent performed services valued in excess of
$50,000 in states other than the State of Texas. Respondent ad-
mits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
A. Respondent’s Business
Respondent is the second largest security service provider in
the country, with about 14,000 customers and 90,000 security
guards/officers. It provides its customers with security officers,
as well as a variety of security services and products. In the Aus-
tin, Texas area, Respondent provides security officers to two
Samsung facilities—the Samsung Austin Research Center
(SARC/Research Center) and the Samsung Austin Semiconduc-
tor Plant. Respondent employs about 110 employees at both lo-
cations, with Branch Manager Joe Shuler (Shuler) over area
were remanded to the Region to sever from the complaint, monitor the
settlement and dismiss those allegations as appropriate and in accord
with the agreement.
3 Murphy voluntarily resigned, effective in August 2016.
4 Marino’s last name is misspelled in the transcript. This is the correct
spelling.
operations. This case involves occurrences at the Research Cen-
ter, where Respondent employs about 10 security offic-
ers/guards, with 2 officers and a shift supervisor on each shift.
B. Respondent Bans Employees from Discussing Internal
Investigations
The Charging Party, Ryan Patrick Murphy (Murphy), worked
as a security officer for Respondent at its Research Center from
August 2015 to August 2016.3 His duties included conducting
entry and exit control of personnel and items, monitoring the fa-
cility via closed circuit television, providing customer service,
and responding to incidents. Murphy worked his shift with two
other officers—Amanda Marino (Marino),4 his direct shift su-
pervisor, and David Brown (Brown), security officer. As stated,
Joe Shuler managed the facility. Tennille Gray (Gray) was the
human resources manager.5
On April 26, 2016, Murphy witnessed or was present during
an incident that resulted in his coworker, Brown, filing a race
discrimination complaint against a supervisor and the company
initiating an investigation. Murphy was the only other employee
present during this incident. (Tr. 27, 29‒31, 122–123, 127.) On
May 5, Branch Manager Shuler and Human Resources Manager
Gray interviewed Murphy regarding the April 26 incident.6
Management did not inform Murphy that a discrimination com-
plaint had been filed, but Murphy understood the investigation
to be about an argument that occurred on April 26. While ques-
tioning Murphy, Shuler and Gray orally instructed him not to
discuss the investigation or incident with anyone. They also
asked him to submit a written statement, which he emailed to
Gray on May 6. (Tr. 31–32, 45.) Murphy attached to his email
to Gray specific questions about the directive not to discuss the
investigation or incident. He asked the following:
First, are you barring me and any other officer who is assigned
to SARC from discussing this matter in perpetuity? Is it just
while you are investigating it? Are there specific individuals
with whom this bar is attached or is it a blanket prohibition
among every security officer? Does the prohibition to talk just
include this incident or does it include other work related mat-
ters? What is the intent of this prohibition? Does the prohibi-
tion only apply during work hours and on site, or am I, and
every other officer prohibited from speaking about this incident
amongst ourselves regardless of the setting? Lastly, what are
the possible ramifications that I or any other officer may face if
we fail to adhere to this prohibition?
If I don’t receive a response, I’ll assume that the prohibition to
not talk about this incident applies to myself and every officer
assigned to SARC [Samsung Austin Research Center] regard-
less of the timing or the setting. If this prohibition was in fact
[erroneous], it is my hope that I, along with every officer on site
[receives] education on this matter.
5 Marino, Shuler and Gray have been supervisors and/or agents of
Respondent within the meaning of Sec. 2(11) and (13) of the Act.
6 Murphy recalled that on April 26, 2016, Shuler and a human re-
sources representative, Pablo Gonzalez arrived after the incident to begin
an investigation or questioning. He was not questioned until May 5. (Tr.
30.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
(Tr. 31–34; GC Exh. 2.)
On May 9, Murphy emailed Shuler (copied to Gray and Ma-
rino) at 7:10 a.m., indicating that he did not receive a response
to his May 6 email inquiry. (GC Exh. 2.)
Later that morning, at 8:42 a.m., Gray emailed Murphy thank-
ing him for his statement, and responding to his May 6 email
inquiries as follows:
In regards to your questions, all are barred from talking during
the time of the investigation in any circumstance. After the in-
vestigation is concluded—if any one starts conversing about it
and those conversations become a distraction to the workplace
anyone involved in conversing could face disciplinary action in
accordance with the handbook.
(Id.) Gray sent a second email to Murphy on May 9 at 8:53 a.m.,
repeating her earlier response to Murphy’s inquiry regarding the
ban on and warning about anyone discussing the investigation.
(Id.) Thus, there is no doubt that this policy prohibiting discus-
sion about the investigation applied to “all” employees. At some
point, Gray informed David McAllister (McAllister), Respond-
ent’s vice president of human resources, via email that they went
out to the facility to investigate “the hotline call we received.”
She explained that they told “all Officers” not to discuss the in-
vestigation with anyone and asked him for guidance on how to
respond to Murphy’s inquiry. In response, McAllister told her
to advise Murphy that “we are barring him from talking during
the time of the investigation in any circumstances. After the in-
vestigation is concluded—If he starts conversing about it and
those conversations become a distraction to the workplace then
he could face disciplinary action in accordance with the hand-
book.”7 (Jt. Exhs. 4(a) and 4(b).)
Murphy testified that he interpreted Gray’s prohibition on dis-
cussing the investigation as prohibiting him from talking about
“any work conditions at all” to any other employees. (Tr. 39,
42–43, 46–49, 55.) There is no evidence that Murphy or any
other employee received discipline or reprimand concerning this
prohibition.
Michael Christopher Pope (Pope), Respondent’s deputy gen-
eral counsel, the only witness for Respondent, testified that he
believed Respondent implemented its prohibition on discussing
the investigation because Brown had complained about employ-
ees gossiping about his complaint. Respondent’s counsel asked
Pope if he “[could] talk to us about the reasons for the Com-
pany’s policy on having employees not discuss internal investi-
gations?” In response, Pope testified that Respondent sought to
“have witnesses come forward with unvarnished, untainted, un-
influenced statements” to get to the truth and to ensure that the
“Mr. Browns of the world” come “forward to make a comment,”
without “know[ing] that everybody is talking behind their back.”
(Tr. 122–124.)
In addition, Pope insisted that banning employees from dis-
cussing the internal investigation complied with the Equal Em-
ployment Opportunity Commission’s (EEOC’s) guidelines for
investigating discrimination and harassment claims. (Tr. 109–
111, 116, 122–124; R. Exh. 4.) This testimony, regarding types
7 Although Gray’s email to McAllister reflects that it was sent at 9:26
a.m., McAllister’s email response indicates that he sent it at 8:36 a.m. on
of investigations that lend themselves to bans on employees dis-
cussing them belies Pope’s earlier testimony that Respondent’s
prohibition was not a policy “which is kind of the Bible of the
Company,” but “words out of that particular manager’s mouth
on that particular day.” (Tr. 139.)
II. DISCUSSION AND ANALYSIS
A. Legal Standards
The Board has long recognized the right of employees to com-
municate in the workplace, which includes the right to discuss
with each other hours, wages and other terms and conditions of
employment. Parexel Int’l., LLC, 356 NLRB 516, 518 (2011),
citing Aroostook County Regional Ophthalmology Center, 317
NLRB 218, 220 (1995), enfd. in part 81 F.3d 209 (D.C. Cir.
1996). The Board has also determined that employee discus-
sions about employer investigations involving themselves or
coworkers are “vital to employees’ ability to aid one another in
addressing employment terms and conditions with their em-
ployer.” Banner Estrella Medical Center, 362 NLRB 1108,
1109 (2015), enfd. 851 F.3d 35 (D.C. Cir. 2017), citing Fresh &
Easy Neighborhood Market, 361 NLRB 151, 155–156 (2014);
see also SNE Enterprises, 347 NLRB 472, 472 fn. 4 (2006), enfd.
257 Fed. Appx. 642 (4th Cir. 2007.)
In Boeing Co., 365 NLRB No. 154 (2017), the Board an-
nounced standards for determining whether an employer’s fa-
cially neutral rule interferes with its employees’ rights in viola-
tion of Section 8(a)(1) of the Act. The Board stated that unless
the rule is of a type that the Board has already designated as be-
ing uniformly lawful or unlawful, the lawfulness of the rule, un-
der Section 8(a)(1), will be evaluated using a balancing test.
First, the Board will determine whether the rule is one that the
employees would “reasonably interpret [ ]” as “potentially inter-
fer[ing] with the exercise of NLRA rights.” If it is, the Board will
evaluate whether the “nature and extent of the potential impact
on NLRA rights” outweighs any “legitimate justifications asso-
ciated with” the rule. Boeing, slip op. at 3–4 and 16. The Re-
spondent’s rule in this case regarding employee participation in
internal investigations is facially neutral and not among those
types that the Board has, as of this time, designated as uniformly
lawful or unlawful.
The balancing test formulation set forth in the Boeing deci-
sion, while it modified the analysis for many types of workplace
rules, does not appear to have meaningfully altered the balancing
test that I have previously applied to Respondent’s confidential-
ity in investigation restrictions. Nor does analysis under the Boe-
ing test alter my conclusion that the restrictions unlawfully inter-
fere with employees’ rights under the Act. In other words, I ad-
here to Board precedent holding that an employer may prohibit
employee discussion of an investigation only when the em-
ployer’s need for confidentiality with respect to that specific in-
vestigation outweighs employees’ rights under Section 7 of the
Act. Thus, an employer is permitted to lawfully impose such a
restriction only on a case-by-case basis and by considering
whether the circumstances of an investigation create legitimate
concerns of witness intimidation or harassment, the destruction
May 9. Thus, it appears that Gray probably sent her inquiry to McAllister
after Murphy’s May 9 request for clarification. (Jt. Exhs. 4(a) and 4(b).)
SECURITAS SECURITY SERVICES USA 5
of evidence, or other misconduct tending to compromise the in-
tegrity of the inquiry. See Banner Estrella, 362 NLRB at 1109–
1110. Also see, Hyundai America Shipping Agency, 357 NLRB
860, 874 (2011), enfd. in relevant part, 805 F.3d 309 (D.C. Cir.
2015); Caesar’s Palace, 336 NLRB 271, 272 fn. 6 (2001). Fur-
ther, a confidentiality rule applied post investigation cannot be
justified as necessary “to protect the sanctity of an ongoing in-
vestigation.” SNE Enterprises, 347 NLRB 472, 472 fn. 4 (2006),
enfd. 257 Fed. Appx. 642 (4th Cir. 2007).
In Banner Estrella, the Board emphasized that “it is the em-
ployer’s burden to justify a prohibition on employees discussing
a particular ongoing investigation.” The Board also stated that
“the employer must proceed on a case-by-case basis;” must not
“reflexively impose confidentiality requirements in all cases or
in all cases of a particular type; and must determine “that confi-
dentiality is necessary in a particular case…based on objectively
reasonable grounds for believing that the integrity of the investi-
gation will be compromised without confidentiality.” Banner
Estrella, above at 1110. The Board affirmed the standard en-
dorsed in Hyundai that it is the employer’s “responsibility to first
determine whether in any given investigation witnesses 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.” Banner Estrella, quoting Hyundai, above, slip op at
15.
In Hyundai, the Board also adopted the judge’s rejection of
the employer’s justification that the rule was necessary to protect
the victim, witnesses and the accused harasser; “to preserve con-
fidentiality consistent with the [EEOC] guidelines and state and
federal courts;” and “to avoid potential liability from accused
harassers in defamation and other causes of action;” Hyundai,
above at 873–874.
In Caesars Palace, the Board recognized the confidentiality
in investigations rule intruded on employees’ Section 7 right to
discuss with each other internal investigations and determined
the issue was “whether the interests of the Respondent’s employ-
ees in discussing this aspect of their terms and conditions of em-
ployment outweighs the Respondent’s asserted legitimate and
substantial business justifications.” Id. at 272. However, when
the Board in Caesar’s Palace examined the facts and circum-
stances in that case, it found that the employer’s need for confi-
dentiality during a drug investigation was a “substantial business
justification” that outweighed interference with employees’ ex-
ercise of their Section 7 rights. Id. In doing so, the Board con-
sidered the specific allegations in the case (drug activity, “man-
agement coverup and possible management retaliation,” and
threats of violence) and Respondent’s intent to “impose a confi-
dentiality rule to ensure that witnesses were not put in danger,
that evidence was not destroyed, and that testimony was not fab-
ricated.” Id. See also, Menorah Medical Center, 362 NLRB
1746, 1767 (2015), enfd. in relevant part, 867 F.3d 1288 (D.C.
Cir. 2017) (the Board found the medical center’s confidentiality
8 Respondent did not call Shuler, Gray, or Gonzalez to testify regard-
ing justification for the rule. Although Pope testified that he was involved
with updating handbook rules, there was no evidence that he participated
in the prohibition on employees discussing the investigation or underly-
ing incident which involved Murphy and other employees.
prohibition against discussing incidents under investigation by
the peer-review committee was unlawful where there was no ev-
idence or accusation of coercion, fabrication of testimony, or
threats of physical harm.
B. Respondent Violated the Act Under the Board’s
Balancing Test
I find that Respondent failed to prove that its justification for
its confidentiality rule banning employees from discussing in-
vestigations outweighs the interests of employees in their rights
under the Act and is therefore unlawful. See, e.g., Hyundai
America Shipping Agency, Inc., above. Even if, under Boeing, a
blanket prohibition on the sharing of information from investi-
gations could be rendered lawful by a sufficiently weighted jus-
tification, the result here would be the same because the record
does not establish any such justification. There was no evidence
here that Respondent had experienced actual or potential prob-
lems with witnesses being harassed or intimidated, evidence be-
ing destroyed, false testimony or other false evidence being cre-
ated, or with anyone otherwise exploiting information from in-
vestigations to interfere with those investigations. Pope, Re-
spondent’s only witness, who did not interview the employees or
issue the directive and rule to Murphy and the other employees,
testified that he believed the rule was implemented because
Brown complained that people were gossiping about his discrim-
ination case and to prevent harassment.8 However, in Gray’s
written ban and email to McAllister, she referenced that she had
told “all” officers not to discuss the investigation. Although Re-
spondent complained in his post-remand response that I errone-
ously dismissed Pope’s testimony as hearsay, that is simply not
the case. Rather, I found that there was no evidence, including
Pope’s testimony, that the prohibition here was initially issued
after or in response to Brown’s complaint that others were gos-
siping about his case. It is true that Gray told McAllister that she
and presumably other of Respondent’s representatives went out
to investigate “the hotline call we received,” and that there is un-
disputed evidence that Brown filed a discrimination complaint.
However, as stated, there was no evidence that Brown com-
plained about being harassed, threatened, intimidated, or even
ridiculed by anyone regarding his allegation.9 Further, in her
email to McAllister, Gray did not mention justification for her
instruction to all officers other than to infer that it was in relation
to a “hotline call.”
In support of the complaint in this case, the General Counsel
relied in part on the recently overruled (by Boeing) analytical
framework set forth in Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004), as well as the analysis set forth in Banner
Estrella Medical Center, 362 NLRB 1108 (2015). In its opposi-
tion to reopening the record, the General Counsel maintains its
reliance on the current Board law set forth in Banner Estrella,
which has not been overruled by Boeing. Consequently, the
General Counsel has correctly argued that even under the Boeing
9 There was no evidence that Murphy was the one who allegedly dis-
criminated against Brown. Rather, the evidence indicates that Murphy
was the witness to an alleged altercation between the supervisor and
Brown.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
standard, Respondent violated the Act by promulgating a rule
prohibiting employees to talk about a pending investigation.
C. Respondent’s Defenses
Respondent, on the other hand, argues that the record shows
that its ban on employee discussion of an on-going investigation
as well as a completed one does not restrict an individual em-
ployee’s exercise of Section 7 rights. Respondent asserts that the
record demonstrates that the prohibition at issue was made solely
for the legitimate business reason of protecting the rights of the
employee complaining of discrimination in that instance. Gray’s
email to Murphy stated that “all are barred from talking during
the time of the investigation in any circumstances,” and that an-
yone creating a distraction to the workplace by talking about it
could face disciplinary action. On its face, one might interpret
that Gray only referred to the investigation at hand. However, I
find after considering the email, along with all other evidence,
that employees might also reasonably interpret it to preclude
such discussions in future investigations. Gray did not tell Mur-
phy that her directive would not apply to other situations which
would include other investigations. (GC Exh. 2; Jt. Ex. 4(a) and
4(b).)
Further, Pope’s extensive testimony in response to Respond-
ent’s counsel’s question about “the reasons for the Company’s
policy on having employees not discuss internal investigations,”
belies his prior testimony, and Respondent’s argument, that this
rule against speaking to others about a pending investigation was
somehow an isolated incident. More specifically, he explained
how Respondent’s purpose for this policy was to seek to “have
witnesses come forward with unvarnished, untainted, uninflu-
enced statements” to get to the truth; to comply with the “EEO”
desire to see companies perform thoughtful, intelligent investi-
gations; and to ensure that the “Mr. Browns of the world” will
not be discouraged from “[coming] forward to make a comment
if they know that everybody is talking behind their back.” (Tr.
122–124.) This testimony clearly does not reflect a policy lim-
ited to the investigation of Mr. Brown’s complaint. Conse-
quently, I find that Respondent intended this policy to apply to
all internal investigations and especially those involving dis-
crimination complaints.
Respondent also argues that it must follow EEOC rules and
guidelines in harassment cases in order to maintain confidential-
ity by keeping records and other information confidential, and
by creating an environment where investigation participants can
speak freely. However, similar assertions regarding EEOC (and
even some state) guidelines and expectations have been rejected
by the Board. See Hyundai, above at 873–874. Respondent dis-
tinguishes this case from Banner Health System, above, slip op.
at 2. However, Respondent did not sufficiently justify its rule
such that its need for the rule outweighed employees’ rights un-
der the Act. Further, I find that Respondent’s ban on employee
discussions constituted an overly broad confidentiality provision
applied to future cases pending investigation, including investi-
gations of a particular type such as those involving discrimina-
tion complaints. The Board has cautioned that an employer must
not “reflexively impose confidentiality requirements in all cases
or in all cases of a particular type.” Banner Estrella, above at
1110. Moreover, the Board has rejected an employer’s
justification that the rule was necessary to protect the victim, wit-
nesses and the accused harasser; “to preserve confidentiality
consistent with the [EEOC] guidelines and state and federal
courts;” and “to avoid potential liability from accused harassers
in defamation and other causes of action;” Hyundai, above at
873–874.
This case is also distinguishable from Caesar’s Palace, above,
where the Board decided that the respondent’s policy was lawful
because it involved drug activity, cover ups by management, and
evidence of possible witness tampering.
Therefore, I find that under either articulation of the Board’s
balancing test, under Banner Estrella or Boeing, Respondent’s
prohibition on employee discussion of investigations unlawfully
restricts employees’ Section 7 rights. Accordingly, I find that
this rule violates Section 8(a) (1) of the Act.
D. The General Counsel’s Plea to the Board
I must note, however, that in the same opposition statement in
support of a violation, the General Counsel advocated for the
Board to overturn its long-held ruling in Banner Estrella. The
General Counsel contended that the standard set forth in Banner
Estrella “could be viewed as unworkable and that it may fail to
give appropriate weight to the shared employee and national in-
terests furthered by the maintenance of confidentiality in the
course of sensitive workplace investigations.” (GC Mot.) The
General Counsel further argued against Banner Estrella’s “sin-
gle-minded adherence to the notion that its expansive and ques-
tionable vision of rights under the NLRA should trump the coun-
tervailing federal and national interests reflected in the employ-
ment statutes administered by other agencies.” (Id.) Finally, the
General Counsel asks the Board to reject Banner Estrella’s cen-
tral requirement that employers determine a need for confidenti-
ality on a case-by-case basis as impractical and dismissive of an
employer’s legitimate and substantial need to conduct confiden-
tial investigations. Without going into further detail, since the
administrative law judge must follow current Board law, I will
leave the General Counsel’s call for a reversal of Banner Estrella
to the Board.
CONCLUSIONS OF LAW
By maintaining an unlawful rule prohibiting all employees in
its Austin, Texas Samsung Research Center from discussing with
each other and anyone else internal investigations, Respondent,
Securitas Security Services USA, has engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a)
(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act. Respondent must rescind, in writing, the
overbroad, unlawful prohibition on employees discussing with
each other and anyone else internal investigations, and advise all
current employees working in its Austin, Texas Samsung facili-
ties in writing that the unlawful prohibition has been rescinded.
SECURITAS SECURITY SERVICES USA 7
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
ORDER
The Respondent, Securitas Security Services USA, Austin,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining an oral or written rule prohibiting all employ-
ees from discussing with each other and anyone else internal in-
vestigations.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days from this Order, rescind, in writing, the
prohibition on employees from discussing with anyone internal
investigations and notify all employees currently employed at its
Austin, Texas facilities that this prohibition has been rescinded.
(b) Within 14 days after service by the Region, post at its
Austin, Texas Samsung facilities in Austin, Texas, copies of the
attached notice marked “Appendix.”11 Copies of the notice, on
forms provided by the Regional Director for Region 16, after be-
ing signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. In addition to physical post-
ing of paper notices, the notices shall be distributed electroni-
cally, such as by email, posting on an 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 notices
are not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility involved
in these proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current employees
and former employees employed by the Respondent at any time
since May 6, 2016.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification 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. August 30, 2019
10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
11 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 National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”