NLRB Reverses Longstanding Precedent Exempting Confidential Witness Statements From Disclosure To Union, Jones Day Labor Blog

On June 26, 2015, the National Labor Relations Board ("NLRB" or the "Board") issued its decision in American Baptist Homes of the West d/b/a Piedmont Gardens, 362 N.L.R.B. No. 139 (Case No. 32-CA-063475) ("Piedmont Gardens"), holding that employers are now required to disclose confidential witness statements gathered during the course of a workplace investigation to union representatives processing employee grievances, unless the employer can establish that its legitimate and substantial interest in confidentiality outweighs the union representative's need for the information. In a split decision with Members Miscimarra and Johnson each dissenting in part, the 3-2 Board majority overturned its long-standing precedent in Anheuser-Busch, Inc., 237 NLRB 982 (1978), which had held that such confidential statements were excluded from the general disclosure requirement. The decision largely follows the Board's December 15, 2012 order in the same case, 359 NLRB No. 46, which it later set aside following the Supreme Court's decision that the Board lacked a proper quorum in Noel Canning.

The Board explained that employers are required to provide union representatives with information relevant to the union's collective bargaining duties, including the processing of employee grievances. 362 N.L.R.B. No. 139 at slip op. 2 In Anheuser-Busch the Board held that witness statements were "fundamentally different" and thus not subject to the disclosure requirement. 362 N.L.R.B. No. 139 at slip op. 3 (citing 237 NLRB at 984).

But the Board in American Baptist Homes found otherwise. The Board cautioned, "Establishing a legitimate and substantial confidentiality interest requires more than a generalized desire to protect the integrity of employment investigations." 362 N.L.R.B. No. 139 at slip op. 3. Rather, the employer must establish that there is some need for witness protection, or some danger of evidence being destroyed, testimony being fabricated, or facts being covered up. Id. Further, an employer cannot simply refuse to share information based on its confidentiality interest, but must instead "seek an accommodation that would allow the requester to obtain the information it needs while protecting the party's interest in confidentiality." Id.

The Board nonetheless admitted that its decision to overturn Anheuser-Busch marked a "departure from longstanding precedent" and announced that it would continue to apply Anheuser-Busch in all cases "where the employer's refusal to provide requested witness statements occurred before [the Piedmont Gardens order.]" Id. at slip op. 6.

Employers should exercise caution in conducting workplace investigations and be aware that they will no longer be able to avoid disclosing witness statements simply based on their confidentiality assurances to witnesses. Employers should also seek the advice of counsel before withholding witness statements or other potentially relevant information from union representatives on confidentiality grounds.

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Doreen S. Davis
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ddavis@jonesday.com

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