The National Labor Relations Board originally heard a complaint from an employee, Mr Navarro, against Banner Health System – an organization that had adopted a confidentiality agreement covering the sharing between employees of private employee information concerning pay rates and disciplinary actions. Banner was told by the court that policies cannot stop workers from talking about pay.
Banner Health is a large healthcare system in Phoenix, AZ. James Navarro worked at Banner, sterilizing surgical equipment. On February 19th 2011 Navarro could not use the autoclave which is a large, pressurized steam sterilizer normally used for sterilizing reusable medical instruments. This was because the hospital's steam pipe was broken.
He was instructed to use hot water from the coffee machine for the first step in the cleaning process and then to use a low-temperature sterilizer with hydrogen peroxide.
Mr Navarro was concerned that those procedures violated the established protocol, which caused him to raise questions with various supervisors and do some quick research – none of which allayed his concerns.
After confirming there were adequate clean instruments available for the day's scheduled surgeries and deliveries, Mr Navarro did not sterilize any additional instruments. He spoke to several other workers at the facility about the problems, and was disciplined for it.
A couple of days later, Mr Navarro visited Banner's human resources consultant, reported his discomfort with the prescribed procedures and expressed concern for his job. That same afternoon, Mr Navarro's supervisor gave him a “non-disciplinary coaching” and - a few days later - a negative yearly evaluation.
The main evidence supporting the claim was the confidentiality agreement and an interview of complainant form – referred to by the human resources consultant – which was the primary evidence in support of the charge that Banner maintained an over-broad investigative non-disclosure policy. The introduction included the wording, “I ask you not to discuss this with your co-workers 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.” However, the HR consultant stated that she did not request non-disclosure from Mr Navarro and he did not testify that he was asked to keep the matter confidential – nor his interview with HR.
It was held that Banner's confidentiality agreement violated the National Labor Relations Act but that its investigative non-disclosure policy and treatment of Mr Navarro did not.
On later appeal by Banner, it was found that Banner’s policies could discourage discussions about working conditions - a right guaranteed under labor law, the court said.
This ruling impacts on all employers and shows that even non-union businesses must watch speech restrictions.
