Recently, the National Labor Relations Board (“NLRB”) officially overruled longstanding protections against disclosure of witness statements taken by employers during an internal workplace investigation.  Since 1978, the Board has maintained that the general duty on an employer to furnish information, pursuant to Section 8(a)(5) of the NLRA, “does not encompass the duty to furnish witness statements themselves” to a union.  Anheuser-Busch, Inc., 237 NLRB 982, 984-85 (1978).  Thus, a bright-line rule was born which protected the confidentiality of witnesses who chose to cooperate with internal workplace investigations. witnessIn American Baptist Homes of the West (Piedmont Gardens), 359 NLRB 46 (2012), an employer discharged a unionized employee after other employees reported that she was sleeping on the job.  During the grievance process, the union requested that the employer turn over witnesses’ written statements.  The employer rejected that request under Anheuser-Busch.  On hearing the case, however, the Board surprisingly found that the bright-line Anheuser-Busch rule was “flawed” and “inappropriate.”  The Board decided to explicitly overrule Anheuser-Busch and replace its then-34-year-old precedent with a balancing test between the employer’s and union’s interests, sourced from Detroit Edison Co. v. NLRB, a 1979 case that dealt with disclosing the results of psychological aptitude tests.

The validity of that 2012 decision shortly came into doubt, as three of the Board’s five members made their way onto the Board through recess appointments later found by the United States Supreme Court to be illegal in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014).  In the wake of Noel Canning, a fully-constituted, legally-appointed Board revisited Piedmont Gardens in short order.  For all intents and purposes, the 2015 Board re-adopted the 2012 Board’s earlier decision.

Under the new test, an employer must determine on a case-by-case basis whether its “legitimate and substantial confidentiality interest” outweighs the union’s need for the information.  An employer’s “desire to protect the integrity of employment investigations” is not enough to support an assertion of confidentiality.  Rather, some factors that could weigh in favor of confidentiality are whether: the witnesses need protection; evidence is at risk of being destroyed; testimony is in danger of being fabricated; or there is a need to prevent a cover-up.  The new rule applies prospectively from June 26, 2015.  Keep in mind that it is ultimately the employer’s burden to establish a need for confidentiality.  Given the current makeup of the Board, that could prove to be a difficult endeavor.

As a practical matter, unionized employers should expect unions to become more aggressive during grievance and arbitration processes in obtaining witness statements taken during the employer’s internal workplace investigations.  The investigations themselves may become more complex and time-consuming, as employees could be reluctant to provide statements if the employer cannot provide some measure of protection from harassment and retaliation by ensuring confidentiality.  Given that a once-predictable rule has yielded to uncertainty with many potential pitfalls, unionized employers should consult competent labor and employment counsel when interviewing employees as part of a workplace investigation or fielding information requests from a union in the grievance or arbitration settings.

Mark focuses his practice in the area of labor and employment law. He regularly defends employers – both public and private sector – in employment-related lawsuits in the state courts of West Virginia and the federal District Court for the Southern District of West Virginia, as well as charges filed before the West Virginia Human Rights Commission, the West Virginia Public Employees Grievance Board, and the federal Equal Employment Opportunity Commission.
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