As the calendar year ends, so does Member Brian Hayes’s term, prompting a series of decisions, including Piedmont Gardens, 359 NLRB No. 46 (Dec. 15, 2012), in which the Board reversed 34 year-old precedent exempting witness statements gathered from an employer’s internal investigation from disclosure to unions. In Piedmont Gardens the Board determined that, going forward, employers must apply the balancing test set forth in Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) when arguing that there is a confidentiality interest in protecting witness statements from disclosure. In so holding, the Board overruled Anheuser-Busch, Inc., 237 NLRB 982 (1978), which had created a “bright-line” rule exempting witness statements obtained by employers during investigations from the general obligation to honor union requests for information.

The issue presented to the Board in Piedmont Gardens was whether the employer violated Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (“the Act”) when it refused to provide the union with witness names, job titles and witness statements in response to a request for information. The union requested the information in connection with a grievance filed after an employee was terminated for sleeping on the job. Three individuals provided the employer with written statements – two of whom were expressly promised confidentiality in connection with their participation in the investigation. The administrative law judge (“ALJ”) determined that the employer violated the Act by refusing to provide the union with witness names and job titles, but did not violate the Act by refusing to produce the witness statements given the clear rule in Anheuser-Busch shielding such statements from disclosure.

The Board agreed with the ALJ that the employer violated the Act by refusing to furnish witness names and job titles. The employer’s general rule to treat such information as confidential did not negate its obligation to provide relevant information to the union. With respect to the witness statements, the Board determined that they are not fundamentally different from other types of information, and that the Anheuser-Busch blanket rule exempting witness statements from disclosure, no matter the circumstances, was unwarranted. Instead, the Board held that the appropriate standard applicable to the disclosure of witness statements is the balancing test set forth in Detroit Edison.

Thus, going forward, employers can no longer simply refuse to produce witness statements. Rather, employers must conduct a new analysis when responding to a union’s request for statements. If the witness statements are deemed relevant, the employer must evaluate whether there is a “legitimate and substantial confidentiality interest” and, if so, whether it outweighs the union’s need for the information. See Detroit Edison, 440 U.S. 301, 318–320 (1979). In addition, the employer must “raise its confidentiality concerns in a timely manner and seek an accommodation from the other party.” Whether the statements are sensitive or confidential in nature, such that they do not need to be disclosed by the employer, will be determined based upon the specific facts of each case.

To support its reversal of long-standing precedent, the Board explained that Anheuser Busch predated the Supreme Court’s Detroit Edison decision, so the Board did not have the opportunity to decide whether the Supreme Court’s balancing test for protecting confidential information was sufficient for protecting witness statements. The Board specifically recognized the inherent risks associated with the production of witness statements, including intimidation or harassment of witnesses, retaliation against individuals who provide statements, and reluctance by witnesses to provide statements for fear of disclosure. However, the Board reiterated that the Detroit Edison balancing test is designed to address confidentiality concerns, and that there is no basis to assume that all statements have such issues shielding them from disclosure.

Acknowledging the import of its about-face decision, the Board determined that the new disclosure standard is effective prospectively, and cannot be applied retroactively. Thus, under the former Anheuser Busch standard, the Board agreed with the ALJ that the employer properly refused to disclose the two statements provided by witnesses who had been promised confidentiality. However, the Board disagreed with the ALJ as to the third witness statement and found that the employer should have provided it to the union because the witness had not been assured confidentiality, which is consistent with the Board’s decision issued the previous day in Hawaii Tribune-Herald, 359 NLRB No. 39 (Dec. 14, 2012), holding that a witness statement should have been produced to the union absent an assurance to the witness that the statement would remain confidential.

In light of the Piedmont Gardens decision, employers should consider the following:

• Employers can no longer give blanket promises to witnesses that their written statements will remain absolutely confidential, which may dissuade individuals from cooperating in investigations.
• It will be more difficult to protect witnesses from intimidation, harassment and retaliation given that their statements may ultimately be produced to the union.
• The issue of whether statements should be produced, and the time devoted to that determination, will delay the underlying proceeding, increase litigation and drive up expenses. Unions will likely always ask for witness statements given the new Piedmont Gardens disclosure standard.

To learn more about the decision, please see Littler's ASAP, As 2012 Ends, So Does the NLRB's Longstanding Bright-Line Rule Protecting Witness Statements from Disclosure, by Tracy Stott Pyles.

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