Overturning a 37-year-old precedent, the National Labor Relations Board has decided that witness statements obtained by an employer during an investigation of employee misconduct and requested by a union representative no longer will enjoy special protection from disclosure. American Baptist Homes of the West d/b/a Piedmont Gardens, 362 NLRB No. 139 (June 26, 2015).
The NLRB held in 1978 that the duty of an employer generally to furnish information to a union on matters affecting unit employees does not include furnishing witness statements produced during workplace misconduct investigations. Anheuser-Busch, Inc., 237 NLRB 982, 984-985 (1978). While protecting witnesses and helping to assure that employers had access to important information from employees (often about fellow unit employees), the case nevertheless permitted the fair resolution of workplace disputes. But the Board has now repudiated the relative simplicity and predictability of that decision. Instead, it will apply a “balancing test” to determine if witness statements should be furnished. The balancing test [enunciated by the U.S. Supreme Court in Detroit Edison, 440 U.S. 2301 (1979)] “requires that if the requested information is determined to be relevant, the party asserting the confidentiality defense has the burden of proving that a legitimate and substantial confidentiality interest exists, and that it outweighs the requesting party’s need for the information.”
The Board will consider whether the information withheld is sensitive or confidential based on the specific facts in each case. The party asserting the confidentiality defense may not simply refuse to furnish the requested information, but must raise its confidentiality concerns in a timely manner and seek an accommodation from the other party.
Because the Piedmont Gardens decision is a departure from longstanding precedent relied on by employers, the Board decided that the new standard will apply only prospectively.
In Piedmont Gardens, a continuing-care facility in Oakland, California, Arturo Bariuad, a certified nursing assistant, was alleged to have engaged in misconduct (sleeping while on duty). Two employees prepared written statements at the employer’s request about the alleged misconduct. They were assured that the statements would be kept confidential. Another employee, a charge nurse who had observed the misconduct, on her own initiative wrote two statements without any assurance of confidentiality. After reviewing the statements, the employer terminated Bariuad.
Bariuad’s union requested all of the witness statements and filed a grievance over the termination. When the employer, based on Anheuser-Busch, refused to produce the statements, the union filed an unfair labor practice charge with the NLRB.
1978 Anheuser-Busch Decision
In Anheuser-Busch, the Board had decided that witness statements are “fundamentally different” from other types of information a union needs to determine whether to take a grievance to arbitration. The Board held that “disclosure of witness statements involves critical considerations that do not apply to requests for other types of information.” In support, the Board referred to a U.S. Supreme Court decision, NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978), a Freedom of Information Act case, for the proposition that “the premature release of witness statements risked employee and union intimidation of potential witnesses, as well as the possibility that witnesses might be reluctant to give statements at all absent assurances about pre-hearing disclosure.”
The Board in Piedmont Gardens, however, said that witness statements are not “fundamentally different from” other information a union might request in connection with its evaluation of a grievance. It also decided that the Supreme Court’s Robbins Tire decision did not require the blanket rule in Anheuser-Busch.
Robbins Tire dealt with prehearing disclosure of Board affidavits in the context of an unfair labor practice hearing, which the Board distinguished from “the context of a bargaining relationship [where] the Board’s longstanding policy is to favor disclosure or, at a minimum, to require the parties to bargain over an accommodation to the interest of promoting collective bargaining and private resolution of disputes.”
While recognizing that legitimate and substantial confidentiality interests may exist in some situations, the Board explained that there is no similar exemption for the disclosure of witness names, despite the fact that the same risks are presented as exist with the disclosure of witness statements.
In a lengthy decision, the Board overturned Anheuser-Busch, favoring the Detroit Edison balancing test. The Board held that, in order to meet this test, the party asserting confidentiality must establish “more than a generalized desire to protect the integrity of employment investigations.” The party must “instead determine whether in any given investigation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated or there is a need to prevent a cover up.” However, even if the party asserting confidentiality can establish this showing, the Board said, the party “must seek an accommodation that would allow the requester to obtain the information it needs while protecting the party’s interest in confidentiality.”
Determining that the new standard should not be applied retroactively in this case, the NLRB, based on Anheuser-Busch, decided that two of the three witnesses’ statements were exempt and protected from disclosure as those witnesses were given assurances of confidentiality. The third witness’s statement, however, was not exempt from disclosure. The Board found it was not a “witness statement” because the witness did not provide the statement under an assurance of confidentiality.
Members Philip Miscimarra and Harry Johnson wrote extensive dissents. Member Miscimarra contended, among other things, that “this case erects yet another substantial obstacle to a well-functioning system of labor arbitrations, contrary to federal policy….” He also disagreed with the majority because, under the Board’s balancing test, the “legitimate and substantial confidentiality interests” test will never be satisfied except in extremely narrow, infrequent circumstances.
Member Johnson argued that Robbins Tire is not applicable simply to unfair labor practice cases, but also should be applied in arbitration because witnesses in those proceedings also may face harassment and intimidation. He also took the position that the Detroit Edison test will require the Board to engage in lengthy, fact-specific assessments every time a witness statement case is presented. This, he asserted, gives employers no certainty as to whether they can show that a legitimate and substantial confidentiality interest exists.
Employers should review and revise their investigation protocols and take steps to increase the likelihood that witness statements are protected from disclosure when the balancing test is applied.
Employers should consider the following:
- Document the reason(s) witness statements are provided, including whether witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up;
- Document specific concerns about the employer’s inability to obtain witness statements in the future if disclosure takes place;
- Raise confidentiality concerns in a timely manner;
- Prepare to offer an accommodation because an employer that shows it has a legitimate and substantial confidentiality concern still must seek an accommodation from the union. Possible accommodations could involve providing a synopsis of the statement, redacting witness names and identifying information, or providing the statement pursuant to a protective order agreement in which the union agrees not to copy the statements and to limit further disclosure and use;
- Preserve other defenses to disclosure, including that the statements were obtained pursuant to the work-product doctrine; and
- Consider making a similar information request for witness statements from the union representative. The NLRB held that “the duty to provide relevant information is not an obligation imposed on employers alone; a similar duty is owed by unions.”
Several other recent Board decisions also substantially undermine workplace investigations. See, e.g., Fresh & East Neighborhood Market, 361 NLRB No. 12 (2014);Banner Estrella Medical Center, 362 NLRB No. 137 (2015). Employers should expect the current Board to continue its level of scrutiny over employer workplace investigation protocols.