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Executive Summary: In a decision that could have a significant impact on an employer's ability to conduct internal investigations of employee wrongdoing, the National Labor Relations Board (NLRB) recently overruled more than three decades of precedent and held that witness statements made to the employer during these investigations will not automatically be considered confidential. See American Baptist Homes of the West, 359 N.L.R.B. No. 46 (Dec. 15, 2012). In American Baptist Homes, the Board overruled a line of cases, including Anheuser-Busch, 237 NLRB 982 (1978), that had established a bright-line rule providing that witness statements are confidential and, thus, excluded from the category of information that must be disclosed to a union. Instead, the Board will now use a balancing test that weighs the union's need for relevant information against any legitimate and substantial confidentiality interests established by the employer.
Under Section 8(a)(5) of the National Labor Relations Act, employers are required to provide information to a union that would be necessary to determine whether to take a grievance to arbitration. The Board has adopted a liberal test to determine whether the requested information is relevant. Essentially, the information will be considered relevant if it has "some bearing" on the issue between the parties.
In Anheuser-Busch, the Board held that witness statements are entitled to a blanket exemption from disclosure because they are fundamentally different from other types of information an employer is required to disclose to a union. The Board's decision in that case was based, in part, on the potential for coercion or intimidation of witnesses and the potential reluctance of witnesses to provide information absent an assurance of confidentiality. Acknowledging these concerns, the Board in American Baptist nevertheless rejected the premise that witness statements are entitled to blanket protection and held that "like the disclosure of witness names, the disclosure of witness statements" is subject to a balancing test to determine whether the confidentiality concern outweighs the union's right to obtain information relevant to the grievance process.
Under the test adopted by the Board, if the information requested by the union is determined to be relevant (which is likely in light of the Board's liberal test for determining relevance), the employer bears the burden of establishing that a "legitimate and substantial confidentiality interest exists," and that it outweighs the union's need for the information. The Board will determine whether the information requested is sensitive or confidential based on the specific facts of the case. Further, an employer cannot simply claim a witness statement is confidential and refuse to produce it. Instead, the employer must raise its confidentiality concerns in a timely manner and seek an accommodation from the union.
Employers' Bottom Line:
This decision is a continuation of the Board's efforts to undermine the ability of employers to ensure the confidentiality of their internal investigations. In Banner Health System, the Board held that instructing employees involved in the investigations not to discuss the matter with co-workers violates the NLRA. For more information on this decision, please see our Legal Alert, NLRB Rejects Employer's Confidentiality Requirement for Internal Investigations. The Board's decision in American Baptist likely will make it more difficult for employers to conduct internal investigations since witnesses may be less willing to provide information absent an assurance that their statements will be kept confidential.
For more information regarding this decision or other labor or employment related issues, please contact the FordHarrison attorney with whom you usually work.