The National Labor Relations Board (NLRB) recently overruled its longstanding precedent that categorically protected confidential witness statements taken during internal disciplinary investigations from disclosure to a union. The case comes on the heels of a decision last summer that a blanket approach requiring confidentiality in workplace investigations violated an employee’s right to engage in protected, concerted activity under the National Labor Relations Act (NLRA). Both decisions signal the NLRB’s shift away from confidentiality measures, which might be perceived to have a chilling effect on witness participation in investigations into workplace misconduct.

In Piedmont Gardens, a continuing care facility conducted an investigation into allegations that a certified nursing assistant had fallen asleep on the job. The facility ultimately discharged the nursing assistant. The union grieved her discharge and requested three witness statements, as well as the names and job titles of individuals involved in the investigation. Refusing to hand over this information, the employer relied on the NLRB’s 1978 Anheuser-Busch exception, which placed witness statements outside an employer’s general duty to honor union requests for information.

In its 3-1 decision, the NLRB rejected Anheuser-Busch’s bright-line approach to protecting the confidentiality of witness statements, opting instead for the more flexible balancing test articulated by the U.S. Supreme Court in Detroit Edison Co. v. NLRB.

Specifically, the test requires that if the requested information is relevant, the party asserting the confidentiality defense must prove that a “legitimate” and “substantial confidentiality interest” outweighs the requesting party’s need for that information. According to the NLRB, this interest might be witness intimidation, fear, harassment, or coercion. But an employer must evaluate this interest against the union’s representative duties and statutory right to obtain relevant information during the grievance process.

Applying this test, the NLRB upheld the Administrative Law Judge’s finding that the facility did not commit a violation by refusing to turn over two of the "witness statements" because the witnesses had been told that they would remain confidential. The NLRB ruled, however, that the third statement was not exempt from disclosure because it was not a “witness statement,” as the nurse who provided it was not given that same assurance of confidentiality. Finally, the NLRB agreed with the judge’s determination that the facility violated the Act by failing to produce witness names and titles, for which there had never been an exception to disclosure.

Board member Brian Hayes dissented from the Board’s decision, writing “[t]his test substitutes doubt for certainty, fettering the ability of employers to effectively conduct investigations of workplace misconduct.” Hayes correctly noted that employers no longer can rely on a bright-line rule protecting witness statements. Each statement now must be subjected to the NLRB's balancing test, injecting uncertainty into these decisions.

It is worth noting that, due to this significant shift in its precedent, the NLRB held that its balancing approach would apply only prospectively, and not to employer refusals to provide witness statements before December 15, 2012.

In light of the Board’s recent approach to confidentiality, employers should be aware of the potentially limited benefit to the offer to keep witness statements confidential as a means of gaining cooperation in an investigation. Before making those assurances, employers will need to evaluate whether their confidentiality interests are “legitimate” and “substantial” enough to outweigh the union’s competing representation interest in the grievance process.

Ballard Spahr’s Labor and Employment Group routinely assists employers in NLRA compliance in conducting investigations, as well as the decision-making process in responding to union requests for information. If you have questions or concerns involving compliance in this context, please contact Brian D. Pedrow at 215.864.8108 or, or the lawyer in Ballard Spahr’s Labor and Employment Group with whom you work.

Copyright © 2013 by Ballard Spahr LLP.
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