'Unpredictable And Potentially Messy'?: NLRB Ruling Could Complicate Employers' Workplace Investigations

In its June 26 split decision in American Baptist Homes of the West d/b/a Piedmont Gardens and Service Employees International Union, United Healthcare Workers- West, 362 N.L.R.B. No. 139 (Case No. 32-CA-063475) ("Piedmont Gardens"), the National Labor Relations Board ("NLRB" or "Board") adopted a new standard for union access to employers' witness statements in discipline cases. In so doing, the NLRB overruled the 37-year-old standard articulated in Anheuser- Busch, 237 NLRB 982 (1978), that provided a blanket exemption for the disclosure of witness statements. Instead of a blanket rule, the majority followed the Supreme Court's 1979 decision in Detroit Edison v. NLRB, 440 U.S. 301 (1979), which requires a case-by-case balancing of the union's need for the witness statements against the employer's "legitimate and substantial confidentiality interests."

In Piedmont Gardens, a continuing care facility discharged a union-represented certified nursing assistant for sleeping on the job. At least three employees witnessed the incident: Piedmont Gardens requested confidential written witness statements from two employees and accepted an unsolicited statement from another, with no guarantee of confidentiality. The union filed a grievance over the employee's termination and in connection therewith requested that Piedmont Gardens provide the names, titles and statements from the three employees. Citing Anheuser-Busch, Piedmont Gardens stated that the law did not require it to provide the union with witness statements collected during its investigation, and therefore, refused to provide copies of the statements. While the Board held that the new standard would not apply retroactively - even to the pending case - going forward the Board would need to balance the employer's needs against that of the union when considering employer refusals to provide requested witness statements.

Board...