While the validity or invalidity of the National Labor Relations Board’s early 2012 recess appointments has been all the rage in labor relations news recently, it’s important not to overlook all of the other things the Board has been doing in recent months.  Like overruling 34 years of precedent on when witness statements must be exchanged between the employer and union. 

Within certain defined legal boundaries, employers have a right to operate their business as they deem appropriate.  For their part, unions have an obligation to represent their members.  Both parties have the statutory obligation under the National Labor Relations Act to provide the other side with relevant information needed to meaningfully perform their respective functions.  

When the issue involves employee misconduct or discipline, the Board long ago set forth the ground rules that both parties must meet to satisfy their mutual duty to provide information/bargain in good faith.  A party has an obligation to provide the names and job titles of witnesses, unless it can establish a legitimate and substantial confidentiality interest in this information.  If a party claims and substantiates such an interest, then a balancing of the parties’ respective interests must occur. 

If, in the end, the party carries its burden of establishing an interest in keeping confidential the names of its witnesses, it then has an obligation to offer the other side an accommodation with regard to disclosure of this information.  In the situation where the possible risk of harassment or intimidation of witnesses is shown to be likely, the party may withhold the names and job titles of its witnesses and, as an accommodation, meet its obligations to provide relevant information by providing a summary of the observations of these witnesses. 

That duty notwithstanding, Board law has long been that when a witness had been assured of confidentiality before providing a statement, a party had no obligation to provide that statement to the other side.  That is, until December 15, 2012, when the Obama Board decided American Baptist Homes of the West

In Baptist Homes, the Board found that there was no material distinction between statements of witnesses and their names and addresses.  Additionally, it found that any confidentiality interest in such documents did not, as a matter of right, trump the other side’s need for such documents.  Now, just like with the names and job titles of witnesses, the requesting party’s need for witness statements must be balanced against any established legitimate and substantial confidentiality interest.  Moreover, when one party refuses to provide such statements on grounds of confidentiality, it now has a duty to be flexible and seek an accommodation with the opposing party concerning the information set forth in the statements. 

As a concession, the Board recognized in Baptist Homes that it was overturning, without notice, long-established Board precedent.  Because of that – and as it has in other recent cases which abandoned long-established precedent – it decided only to apply its Baptist Homes decision prospectively.

Considering the path the Board has been on within the last 18 months or so, the result in the Baptist Homes case is hardly surprising.  As such, and going forward, employers need to use continued caution in all labor relations matters.  Even those involving what might otherwise be a simple request for names, addresses, and witness statements of your employees.  For employers who haven’t, consulting competent counsel to help in this area is never a bad idea.

Allison Williams focuses her practice in the area of labor and employment law, litigation, and higher education law. Ms. Williams' practice includes cases pending in state and federal courts, as well as actions pending before the West Virginia Public Employees Grievance Board, the West Virginia Human Rights Commission, and the Equal Employment Opportunity Commission.
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