NLRB Now Permits Disclosure of Witness Statements to Unions

Author: Melissa Gonzalez Boyce, XpertHR Legal Editor

In yet another reversal of longstanding precedent, the National Labor Relations Board (Board) held in American Baptist Homes of the West d/b/a Piedmont Gardens, +2012 NLRB LEXIS 846; +359 NLRB No. 46 (December 15, 2012) that employers can no longer simply assert that a witness statement taken in the course of an internal investigation is confidential and refuse to provide the statement to the union. Rather, an employer must apply a balancing test to establish a real confidentiality interest. Under this new balancing test, an employer must now determine whether it has a "legitimate and substantial confidentiality interest" and, if so, whether it outweighs the union's need for the information.

In this case, the employer explicitly promised witnesses confidentiality and that their statements gathered during the course of a grievance investigation would not be disclosed to the union. Upon the union's request for the witnesses' names, job titles and statements, the employer refused based on the Board's 34-year-old case of Anheuser-Busch, +1978 NLRB LEXIS 744, +237 NLRB 982 (August 25, 1978) which had held that witness statements obtained by employers during an investigation are exempt from the general obligation to turn over information to unions upon request. An Administrative Law Judge held that the employer did not violate the National Labor Relations Act when it refused to provide the witness statements to the union given the longstanding rule established in Anheuser-Busch. The case was then appealed to the Board.

In a complete reversal of precedent, the Board noted that employers have a "general obligation" to furnish a union with relevant information necessary to perform its duties and ruled that an employer must now "raise its confidentiality concerns in a timely manner and seek an accommodation from the other party." Put simply, an employer must articulate a reason why such information is sensitive or confidential and bargain with the union over whether there exists another way to accommodate the request. Employers can no longer categorically refuse to turn over witness statements to unions.

This decision is quite significant as it will impact the manner in which an employer may obtain the information necessary to conduct a diligent and complete workplace investigation. No longer may an employer give witnesses blanket assurances that their written statements will remain confidential. This will surely deter some employees from cooperating and actively participating in internal investigations for fear of harassment, retaliation and intimidation should their statements be disclosed to the union. This point was explicitly raised by Board Member Hayes, who disagreed with the Board's majority decision. As he explained, the Board's new position on the disclosure of witness statements directly conflicts with the Equal Employment Opportunity Commission's (EEOC) existing guidance on workplace investigations of harassment claims, which provides that employers assure the confidentiality of harassment complaints to the extent possible. The Board's new requirement that employers provide unions with witnesses' statements gathered during the course of a harassment complaint will now potentially expose the employer to EEOC violations. Finally, employers must be aware that the fact that the Board has now replaced a bright rule of exemption with a balancing test will only lead to more time spent determining a confidentiality interest, delayed proceedings and increased litigation.

Continue to check XpertHR for the latest news on this and other key HR compliance issues.

Additional Resources

Labor Relations > Alternative Dispute Resolutions

Investigations and Litigation > Internal Investigations