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Banner Health System v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

March 24, 2017

Banner Health System, doing business as Banner Estrella Medical Center, Petitioner
National Labor Relations Board, Respondent

         On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

          Mark G. Kisicki argued the cause for petitioner. With him on the briefs was Elizabeth M. Townsend.

          Maurice Baskin and Elizabeth Parry were on the joint brief for amici curiae for American Hotel & Lodging Association, et al. in support of petitioner.

          Allyson N. Ho, John C. Sullivan, and Judd E. Stone were on the brief for amicus curiae Association of Corporate Counsel in support of petitioner.

          Joel A. Heller, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Usha Dheenan, Supervisory Attorney.

          Before: Pillard, Circuit Judge, and Edwards and Silberman, Senior Circuit Judges.


          Pillard, Circuit Judge

         This case requires us to decide whether an employer's effort to keep certain information confidential ran afoul of its employees' established rights under federal labor law to share employment-related information with one another in an effort to improve their lot. The National Labor Relations Board concluded that petitioner Banner Health's Confidentiality Agreement unlawfully barred its workers from sharing information at the heart of labor law's concern: information about salaries and employee discipline. The Board also determined that Banner unlawfully maintained a categorical policy of asking employees not to discuss certain kinds of human resources investigations. Such investigative nondisclosure policies, the Board held, may only be applied on a case-by-case basis following a threshold determination that confidentiality is necessary to the particular investigation.

         The Board's invalidation of the Confidentiality Agreement was reasonable and supported by substantial evidence, and we therefore grant the application for enforcement on that issue. But, because the record lacks substantial evidence that Banner actually maintained a categorical investigative nondisclosure policy, we grant the petition for review and deny enforcement as to that portion of the Board's Order.

         I. Background

         Banner Health is a large, nonprofit healthcare system that includes Banner Estrella Medical Center in Phoenix, AZ. James Navarro worked at Banner Estrella sterilizing surgical equipment. On February 19, 2011, Navarro learned that he could not use the autoclave-a large, pressurized steam sterilizer normally used for sterilizing reusable medical instruments-because the hospital's steampipe needed to be fixed. He was instructed to use hot water from the coffee machine in the break room for the first step in the cleaning process, and then to use a low-temperature sterilizer with hydrogen peroxide. Navarro was concerned that those procedures violated established protocol. He raised questions with various supervisors and did some quick research that did not allay his concerns. After confirming there were adequate clean instruments available for the day's scheduled surgeries and deliveries, Navarro did not sterilize additional instruments. His supervisor was not pleased. A couple of days later, Navarro visited Banner's human resources consultant, JoAnn Odell, reporting his discomfort with the prescribed procedures and expressing concern for his job. That afternoon, Navarro's supervisor gave him a "nondisciplinary coaching" and, a few days later, a negative yearly evaluation.

         Navarro filed an unfair labor practice charge with the Board, prompting the Board's Regional Director to file a retaliation complaint against Banner. Based on documents unearthed during discovery, the Regional Director amended the complaint to include claims that Banner (1) made employees sign an overbroad Confidentiality Agreement and (2) maintained an overbroad rule requiring nondisclosure of investigative interviews.

         The main evidence supporting the first claim was the Confidentiality Agreement itself. The Agreement defined "confidential information" to include, as relevant here, "[p]rivate employee information (such as salaries, disciplinary action, etc.) that is not shared by the employee." J.A. 86. The Agreement further stated that "[k]eeping this kind of information private and confidential is so important that if I fail to do so, I understand that I could be subject to corrective action, including termination and possibly legal action." Id. According to Odell, all new Banner hires were required to sign this Agreement.

         The primary evidence in support of the charge that Banner maintained an overbroad investigative nondisclosure policy was an "Interview of Complainant" form that Odell referred to during her interview of Navarro. That document contained prepared statements and questions for human resources interviewers to read, along with space for notes. It opened with an "Introduction for all interviews, " part of which stated: "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 rumors." J.A. 81. The only other relevant evidence came from Odell's rather general and ambiguous testimony about how the interview form was used. Odell testified that Banner employees were never given a copy of that form and that she "request[ed]" nondisclosure "[h]alf a dozen [times], maybe" in her 13 months at Banner, and only "in the more sensitive situations." See Tr. 186, 193-96, 258-60. She said that, notwithstanding the form's reference to "all interviews, " she did not "necessarily" request nondisclosure in every interview and did not do so of Navarro. Id. at 194. (Later in the transcript, Odell appears to contradict ...

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