In its last-minute push to clear its docket of all cases in which its decisions were invalidated by the United States Supreme Court’s ruling in Noel Canning v. NLRB, the National Labor Relations Board has issued two new significant decisions, substantially reaffirming its earlier determinations.
In Banner Estrella Medical Center, 362 NLRB No. 137 (June 26, 2015), the Board reaffirmed its 2012 decision finding unlawful an employer request to employees who were involved in a workplace investigation not to discuss the matter with their coworkers while the investigation was ongoing. The NLRB decision requires employers to determine, on a case-by-case basis, whether to request confidentiality. The Board noted four instances in which a request for confidentiality is appropriate – “situations in which ‘witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover-up.’” The Board acknowledged that other situations may exist where a request for confidentiality would be lawful (“we do not exclude the possibility that there may be other comparably serious threats to the integrity of an employer investigation that would be sufficient to justify a confidentiality requirement”).
Member Philip Miscimarra wrote an extensive dissent to the majority’s finding that the nondisclosure request at issue in the case violated the NLRA, no doubt in anticipation of the employer’s appeal to a federal appeals court. He noted that, in this case, a “request” for confidentiality had been made “while this investigation is going on.” Miscimarra opined that, as decided by the administrative law judge, “a narrowly tailored non-disclosure request like the one at issue here, even if made routinely, [is] lawful under the [National Labor Relations Act].”
In the other decision, Piedmont Gardens, 362 NLRB No. 139 (June 26, 2015), the Board reaffirmed its decision to overrule almost 40 years of Board precedent holding that the general duty to furnish a union information “does not encompass the duty to furnish witness statements….” In the new decision, the Board overruled Anheuser-Busch, 237 NLRB 982 (1978), and substituted for it a “balancing test” to be used when an employer argues that it has a confidentiality interest in protecting witness statements from disclosure (weighing the employer’s claim that the witness statement is confidential against the union’s need for the information). Since the case was decided by the full, five-member Board, both Republican Board Members, Harry Johnson and Philip Miscimarra, participated in the decision and authored extensive dissents.
We will provide further analyses of both of these cases soon.