In two decisions issued on June 26, the National Labor Relations Board overruled its longstanding precedent holding that employers may withhold witness statements from requesting unions and further held that general policies requiring employee confidentiality in all company investigations are unlawful.
For more than 35 years (since Anheuser-Busch, Inc., 237 NLRB 982 (1978)) the National Labor Relations Board (NLRB) has held that the general duty of an employer to furnish information to a requesting union does not encompass the duty to produce confidential witness statements. In Anheuser-Busch, the NLRB held that witness statements are fundamentally different from other types of information sought by a union and that their release carried a special risk of potential witness intimidation, as well as the possibility that witnesses would be reluctant to give statements without assurances that they would be kept confidential.
For all other information, including requests for the names of witnesses, the NLRB has historically applied the balancing test enunciated in Detroit Edison v. NLRB, 440 U.S. 301 (1979) to determine whether the information sought must be provided notwithstanding an employer’s confidentiality concerns.
The Piedmont Gardens Decision
In American Baptist Homes of the West d/b/a Piedmont Gardens, 362 NLRB No. 139 (Jun. 26, 2015), the NLRB rejected its longstanding precedent and held that an employer’s ability to withhold confidential witness statements will depend on the Detroit Edison balancing test.
Under Detroit Edison (assuming the requested information is relevant), the initial burden is on the employer to establish “a legitimate and substantial confidentiality interest” with respect to the witness statements by showing that the “witness[es] need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is need to prevent a cover up.” If the employer is able to make such a showing, “the Board then weighs the [employer’s] interest in confidentiality against the [union’s] need for the information.” The employer may not flatly refuse to provide information that is shown to be confidential, but must seek an accommodation from the union “that would allow the [union] to obtain the information it needs while protecting the [employer’s] interest in confidentiality.”
The NLRB’s decision in Piedmont Gardens will be applied prospectively. In applying the Detroit Edison analysis to the names and job titles of witnesses, the NLRB in Piedmont Gardens made it clear that an employer’s burden cannot be established by a general interest in maintaining the confidentiality of company investigations or avoiding harassment and intimidation of employees based on their statements, or by demonstrating that a union could easily obtain the requested information from another source. In Piedmont Gardens, the employer made each of these arguments with respect to the confidentiality of the names and job titles of witnesses, and each argument was rejected by the NLRB. The NLRB reasoned that (i) an employer’s policy of ensuring the confidentiality of witnesses was, by itself, insufficient to establish its confidentiality interest, (ii) there must be a factual basis to support a concern about witness harassment and intimidation, and (iii) the availability of the requested information from other sources did not excuse the employer’s obligation to provide such information.
The NLRB noted that its decision in Piedmont Gardens does not impact the work product doctrine, which may still be raised to object to a union’s request for witness statements where such witness statements were obtained in anticipation of litigation or for trial.
The Banner Health Decision
On the same day that the NLRB issued Piedmont Gardens, it issued a second decision impacting an employer’s ability to maintain confidentiality in investigations—Banner Health System d/b/a Banner Estrella Medical Center, 362 NLRB No. 137 (Jun. 26, 2015). In Banner Health, the NLRB reconsidered and confirmed an earlier decision of the improperly constituted NLRB in the same case reported at 358 NLRB No. 93.
The recently issued Banner Health decision holds that a general employer policy requiring confidentiality in investigations will be found to unlawfully interfere with employees’ Section 7 rights to discuss discipline or ongoing disciplinary investigations involving themselves or their coworkers. An employer may require confidentiality in an ongoing investigation on a case-by-case basis where the employer is able to demonstrate that “corruption” of an investigation would “likely occur without confidentiality.” Potential corruption includes cases in which (1) witnesses need protection, (2) evidence is in danger of being destroyed, (3) testimony is in danger of being fabricated, or (4) there is a need to prevent a cover-up.
Employers that have union-represented employees will need to decide how workplace investigations will be conducted in light of Piedmont Gardens. The NLRB’s decision in Banner Health will affect the ability of all employers covered by the National Labor Relations Act—whether their employees are represented by a union or not—to maintain confidentiality in workplace investigations. The need for confidentiality in an investigation must be determined on a case-by-case basis.
In an investigation involving union-represented employees, witnesses can no longer be assured that their statements will not be disclosed to the union. This may, of course, diminish employees’ willingness to disclose information during an investigation. Employers can still inform employees that their witness statements will be treated as confidential on a case-by-case basis, consistent with Banner Health, but the designation of a witness statement as “confidential” will not necessarily prevent its disclosure to the union.
When faced with a request from a union for witness statements that are relevant to a grievance or an issue of employee discipline, the confidentiality of witnesses’ statements must be balanced against a union’s need for the information on a case-by-case basis. Possible accommodations could include redacting the witness names from statements or producing a list of witness names with a summary of the information obtained without attributing the information to any particular witness. Whether a particular accommodation is appropriate will depend on the facts and circumstances of each given case and, ultimately, the proposed accommodation will be subject to good faith negotiation with the union.