By:  Kamran Miraffati

For over 34 years, witness statements obtained by an employer during an investigation of employee misconduct have been considered confidential and were not required to be produced to the union that represented the employee.  However, in a newly released decision, Piedmont Gardens, 359 NLRB No. 46 (2012), the National Labor Relations Board (“Board”) continued its recent agenda of reversing longstanding precedent and overturned this simple bright-line rule.  Employers are now forced to apply the balancing test articulated by the Supreme Court in Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) — no longer guaranteeing confidentiality of witness statements.

At issue here was whether an employer violated Sections 8(a)(1) and (5) of the National Labor Relations Act (“NLRA”) by failing to provide a union with the names, job titles, and written statements of three individuals who witnessed an employee sleeping on the job.

The Administrative Law Judge (“ALJ”) held that failure to provide the witness names and job titles violated the NLRA.  In contrast, the ALJ held that disclosure of the witness statements was not required based upon the longstanding precedent of Anheuser-Busch, Inc., 237 NLRB 982 (1978) (obligation to provide relevant information to union did not apply to witness statements).

The Board upheld the ALJ’s finding that the failure to disclose witness names and job titles was unlawful.   It found that an employer’s policy of keeping witness names confidential did not establish a substantial confidentiality interest and that the union’s ability to obtain the requested information elsewhere did not excuse the obligation to provide the information.

With respect to the witness statements, the Board disagreed with the Judge’s reasoning and overruled the bright-line rule of Anheuser-Busch.  Instead, the Board indicated that the Detroit Edison balancing test should be used for all future matters involving confidential witness statements.  Under this test, employers must conduct a fact-specific analysis that balances a union’s need for the information against the employer’s legitimate and substantial confidentiality interests.  The employer may no longer simply refuse to furnish the requested information, but must raise its confidentiality concerns in a timely manner and then seek an accommodation from the union.

The Board reasoned that since Anheuser-Busch predated Detroit Edison, the Anheuser-Busch Board did not have the opportunity to consider whether the Supreme Court’s test for confidential information should apply to witness statements.  Although the Board recognized that there would some potential risk of employee intimidation or employee reluctance to provide statements, there was no basis to assume that all witness statements, no matter the circumstances, warrant exemption from disclosure.  The Board further indicated that the flexible approach of Detroit Edison adequately protects the interests of the employer and witnesses, while preserving the general right of requesting unions to obtain relevant information.

As a surprising token of good will to employers, the Board applied the new rule prospectively — only to refusals to disclose occurring after the date of this decision.  As a result, the Board adopted the ALJ’s findings that two of the witness statements were exempt from disclosure under Anheuser-Busch.  However, the third statement was not considered a “witness statement” because the employee did not provide the statement under an assurance of confidentiality from the employer.  This reasoning is consistent with Hawaii Tribune-Herald, 359 NLRB No. 39 (2012), which was decided just a day earlier and held that an employer must produce witness statements obtained without any assurance of confidentiality.

The new Board standard for witness statements is likely to result in several adverse consequences for employers:

• Employers can no longer guarantee confidentiality of witness statements upfront.  Nothing is certain until the Board, or perhaps a reviewing court, makes a final determination whether a disputed statement must be disclosed.

• Employers can no longer protect witnesses from harassment or intimidation and witnesses are likely to be more reluctant to provide statements.

• Employers are likely to face an increase of litigation.  Unions will almost certainly now ask for witness statements in any instance of a represented employee’s alleged misconduct.  If the employer refuses to provide them based on a claim of confidentiality, the union will have to file an unfair labor practice charge.  During the ensuing investigation and possible litigation, the grievance arbitration will grind to a halt awaiting a final Board decision, even though the misconduct issue involves no statutory matter other than the information request issue.