NLRB Limits Confidentiality In Workplace Investigations

In two decisions issued on June 26, the National Labor Relations Board overruled its longstanding precedent holding that employers may withhold witness statements from requesting unions and further held that general policies requiring employee confidentiality in all company investigations are unlawful.

Background

For more than 35 years (since Anheuser-Busch, Inc., 237 NLRB 982 (1978)) the National Labor Relations Board (NLRB) has held that the general duty of an employer to furnish information to a requesting union does not encompass the duty to produce confidential witness statements. In Anheuser-Busch, the NLRB held that witness statements are fundamentally different from other types of information sought by a union and that their release carried a special risk of potential witness intimidation, as well as the possibility that witnesses would be reluctant to give statements without assurances that they would be kept confidential.

For all other information, including requests for the names of witnesses, the NLRB has historically applied the balancing test enunciated in Detroit Edison v. NLRB, 440 U.S. 301 (1979) to determine whether the information sought must be provided notwithstanding an employer's confidentiality concerns.

The Piedmont Gardens Decision

In American Baptist Homes of the West d/b/a Piedmont Gardens, 362 NLRB No. 139 (Jun. 26, 2015), the NLRB rejected its longstanding precedent and held that an employer's ability to withhold confidential witness statements will depend on the Detroit Edison balancing test.

Under Detroit Edison (assuming the requested information is relevant), the initial burden is on the employer to establish "a legitimate and substantial confidentiality interest" with respect to the witness statements by showing that the "witness[es] need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is need to prevent a cover up." If the employer is able to make such a showing, "the Board then weighs the [employer's] interest in confidentiality against the [union's] need for the information." The employer may not flatly refuse to provide information that is shown to be confidential, but must seek an accommodation from the union "that would allow the [union] to obtain the information it needs while protecting the [employer's] interest in confidentiality."

The NLRB's decision in Piedmont Gardens will be applied prospectively. In applying the Detroit Edison...