“I Agree To Wear A Unicorn Suit And Bake Cookies” – Nestlé USA NLRB Decision Raises New And Old Warnings For Workplace Investigators

On December 7, 2020, the National Labor Relations Board (NLRB) ruled that Nestlé, USA Inc.’s handling of an internal workplace investigation violated the National Labor Relations Act.[1]  The case (1) revisits the issue of confidentiality admonitions; (2) flags a new concern about interim measures (administrative leave/suspension); and (3) cautions investigators against probing too deeply into a Complainant’s motives to fabricate without directly confronting the Complainant about those motives.  After reciting the factual background, this blog highlights some of the key lessons learned from this ruling.  Thanks Nestlé, for reminding us to avoid making the same mistakes.

The Facts

The facts of this case were dense.  What follows is a brief chronological overview:

• In 2018, a Nestlé employee (Complainant) presented a written petition, signed by six other employees, to Human Resources.  The petitioners complained that another co-worker (Respondent) was verbally abusive. 

• In the weeks following the petition, the employer investigated and sustained some of the allegations against the Respondent, but found some of the allegations were untrue.  

• The Investigator subsequently scheduled a meeting with the petitioners to discuss the outcome of the investigation.  Before the meeting began, the Investigator asked the petitioners to execute a sign-in sheet.  The bottom of the sheet read, “By signing this sign-in sheet, I agree to wear a unicorn suit and bake cookies for my [co-workers].”  

• Days later, the Investigator confronted the petitioners with the “unicorn suit” sign-in sheet.  The Investigator accused the petitioners of signing the petition against the Respondent, despite the fact that, in part, it contained (what the investigator deemed) false information.  The Investigator used this sheet in their conversation to demonstrate the petitioners’ willingness to sign a document without verifying all of its content.  The original Complainant was upset by this conduct as well as the overall handling of the investigation and its outcome.

• Months later, the Complainant heard from a co-worker that the Respondent made a race-based comment about Black employees.  The Complainant informed two different Black co-workers about this allegation, complained about how the Investigator handled the prior investigation, and about how they failed to investigate this allegation (which the Complainant had not previously raised with the employer).  The Complainant also informed another co-worker that Human Resources might want to speak to him about the race-based comments.

• When the Complainant’s supervisors learned the Complainant contacted this fourth co-worker, the Investigator determined the employer should suspend the Complainant, “so that they could carry out an unimpeded investigation.”  The Complainant’s supervisor informed the Complainant that he was suspended for interfering with the investigation and stated, “We don’t want you to talk to anybody.”  The employer commenced an investigation into the race-based comments soon thereafter. 

• During the subsequent investigation, some of the witnesses told the Investigator that the Complainant was still upset about the outcome of the prior investigation, and wanted the Respondent fired so the Complainant could take the Respondent’s job.  In an interview with the Complainant, the Investigator asked the Complainant who else he spoke to about the alleged race-based comment and why he spoke to those persons.  The Complainant asserted he had a right to complain to his co-workers about his dissatisfaction with the prior investigation.  

The Takeaways

Confidentiality Admonitions

The NLRB found the employer’s statement to the Complainant, “We don’t want you to talk to anybody” was an overbroad confidentiality admonition.[2]  In making this ruling, the NLRB acknowledged the employer had “one of the most compelling business interests to justify [the admonition]: preserving the integrity of the investigation[.]”  However, the NLRB found Nestlé’s admonition went too far.  Namely, the admonition to the Complainant was not time-limited and was so broadly-worded that it unlawfully prohibited the Complainant from discussing any workplace issue, with any employee, ever. 

Best Practices –The NLRB explained that in most cases, confidentiality admonitions should articulate the subject-matter covered by the admonition and expire upon the investigation’s conclusion.  The language should also leave room for the employee to discuss the matter for legitimate reasons such as securing representation or inquiring about the status of the investigation.  

Interim Measures/Administrative Leave

The NLRB found the employer violated the law when it suspended the Complainant for informing his co-worker of his complaint and that Human Resources might want to speak with him.  The NLRB noted the employer had a legitimate business interest in protecting the integrity of the investigation.  However, the NLRB pointed out that employees have a protected right to discuss disciplinary investigations and the employer’s interest must be balanced against that right.[3]

Best Practices – Placing a Complainant on administrative leave or suspension during the course of an investigation is sometimes appropriate.  However, the NLRB made it clear employers should be prepared to establish they have a legitimate business interest for doing so.  As Nestlé USA, demonstrates, that threshold is not met when a Complainant informs a potential witness that they may be contacted by Human Resources.

Scope Of Questioning

The NLBR took issue with the Investigator’s questioning about whom the Complainant spoke to about the allegations and why he did so. 

First, while the Investigator claimed to have reason to believe the Complainant was raising concerns in bad faith, the NLRB noted the Investigator failed to give the Complainant an opportunity to respond to that suspicion.  The NLRB found that by doing so, the Investigator’s question to the Complainant about why he spoke to co-workers about the alleged race-based comments strayed too close to asking about the Complainant’s intention to engage in protected concerted activity: “An employee’s subjective reason for [reporting the allegations] is irrelevant to […] whether the [reporting] is [protected] concerted [activity.]”  

Best Practices – Investigators can, and should, ask about a Complainant’s potential motive to fabricate allegations.  However, these questions must still be narrowly tailored to whether the allegations are true.  Nestlé USA shows that investigators should avoid questioning employees about their motives for complaining unless they have sufficient evidence suggesting potential fabrication and can demonstrate the purpose of such questions is to determine whether or not the allegations occurred.  One way to demonstrate this is by giving the Complainant an opportunity to respond to an assertion that they fabricated an allegation. 

Second, the NLRB noted the employer already knew the Complainant heard about the alleged race-based comment through another employee with first hand-knowledge of the comment.  Thus, the NLRB pointed out that the Complainant’s motives for discussing the matter with his co-workers were irrelevant to whether the Respondent made the alleged comment.  The NLRB thus rejected the Investigator’s assertion she was simply trying to identify additional witnesses and found the Investigator improperly asked about concerted activity (reporting the allegations to co-workers).  

Best Practices – It is important for investigators to identify potential witnesses and seek sources of direct or indirect corroboration.  Nonetheless, Nestlé USA suggests that investigators should avoid questioning employees about their conversations with coworkers about allegations when the investigator already knows which witnesses have personal knowledge of the truth of those allegations.

[1] https://apps.nlrb.gov/link/document.aspx/09031d45832eed54

[2] “[The admonition] went beyond narrowly requiring [Complainant] not to discuss the investigation of the complaints or the interviews conducted during the course of the investigation.”

[3] INOVA Health System, 360 NLRB 1223, 1228 (2014); Caesar’s Palace, 336 NLRB 271, 272 (2001)