On June 26, the NLRB, in a 3-2 decision pitting the Democrat majority against the Republican members, decided that employers are normally required to provide confidential witness statements to unions that request them in connection with the processing of grievances. The Board’s decision, in American Baptist Homes of the West dba Piedmont Gardens, applies only to refusals to supply witness statements that occur after the date of the decision because the Board recognized that it was overturning precedent that had existed since 1978. The Piedmont Gardens decision comes two and a half years after an earlier decision reached the same result but was voided for lack of a quorum by the Supreme Court’s decision in Noel Canning.

Even under Piedmont Gardens, an employer does not have to produce the statements if it can establish that it has a legitimate and substantial interest in confidentiality that outweighs the union’s need for the statements. But this may not be a very meaningful exception. (Read on.)

The Board’s decision lumps witness statements provided with assurance of confidentiality into the same bucket with other information relevant to the union in the processing of grievances and its other collective bargaining duties. The Board majority explained that “establishing a legitimate and substantial confidentiality interest requires more than a generalized desire to protect the integrity of employment investigations.” According to the Board, the employer must establish there is some need for witness protection, or some danger of destruction of evidence, fabricated testimony, or a cover-up. Even if such a need exists, the employer may not simply refuse to disclose the statements but instead must “seek an accommodation that would allow the requestor to obtain the information it needs while protecting the party’s interest in confidentiality.” The majority contends the parties can bargain over the accommodation.

The Board majority decision ignores the realities of workplace investigations. In order to gather facts, employers often have to give assurances of confidentiality to witnesses who are otherwise reluctant to state facts “on the record.” These assurances result in better investigations, and benefit employers and employees alike. So now, with the Board’s new rule, an employer cannot accurately give assurances of pre-hearing confidentiality and is therefore likely to get less relevant information. The Board’s new rule is thus likely to impede investigations and fact-gathering, as the dissenting panel members in the Piedmont Gardens case point out.

Moreover, the Board’s statement that the employer needs to “seek an accommodation” from the union and that the parties can bargain over the accommodation would be laughable if the treatment of witness statements were not such a serious and important issue of policy. How will the “seeking accommodation” and bargaining end? Does a union have any incentive not to demand the witness statements? Real bargaining occurs only when parties can, if needed, exert economic leverage, not when there is a one-sided Board rule that gives all the leverage to the union. Can the employer bargain to impasse mid-term over the accommodation and implement a last, best, and final offer? Any bets on how a majority of this Board would rule on that?