Union Entitled to Witness Statements Unless Employer Proves Need for Confidentiality*
March 28, 2013 by Dale Brodsky
Workforce questions of confidentiality and anonymity often arise in labor law as well as employment law. The NLRB decision summarized here looks at the consistent denial to grant union access to witness statements when assurances of confidentiality have been given by the employer. Since the NLRB’s 1978 decision in Anheuser-Busch, 237 NLRB 982, Unions have been denied access to witness statements collected by an employer during investigation of employee misconduct, so long as the statements were actually adopted by the witnesses and the witnesses were assured the statements would remain confidential. As of December 2012, that is no longer the rule.
Here, the union was representing a nursing home employee who was discharged for allegedly sleeping on the job based on statements the employer received from several co-workers. The human resources officer assured two of the witnesses that their statements would be confidential. The union filed a grievance and made an information request for copies of witness statements, but the employer refused to provide the names or job titles and statements of the witnesses, claiming that the law does not require disclosure of witness statements collected during an investigation.
Finding the rationale of Anheuser-Busch to be “flawed,” the Board prospectively overruled it and replaced it with the balancing test established by the U.S. Supreme Court in Detroit Edison Co. v. NLRB (1979). The new rule is that an employer must disclose to the union information-including witness titles, names, and statements-if the information sought is relevant. If the employer objects to the disclosure, it can only refuse to provide the information by proving that a “legitimate and substantial confidentiality interest exists, and that it outweighs the requesting party’s need for the information.” In addition, the employer may not simply refuse to produce the requested information but must raise its confidentiality concerns in a timely manner and seek accommodation from the Union.
Because the Board overruled Anheuser-Busch only prospectively, the 1978 Board decision on Anheuser-Busch was applied to this case. The Board confirmed that witness names and titles are not protected from disclosure under even under the previous decision in Anheuser-Busch. However, the Board did not compel disclosure of statements by two the witnesses who had been promised confidentiality. The decision will likely make it easier for Unions to gain information from witnesses’ statements that employers cite as support for adverse actions taken against employees.
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*American Baptist Homes of the West d/b/a Piedmont Gardens, 359 NLRB 46 (2012). Summary provided by BT&B.
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