NLRB Rules That Employer May Be Required to Provide Union with Witness Statements from Internal Investigation

In another divided decision, the National Labor Relations Board (the NLRB or Board) recently overturned longstanding precedent and held that an employer may be required under the National Labor Relations Act (the NLRA or Act) to disclose witness statements to the Union. American Baptist Homes of the West d/b/a Piedmont Gardens, 359 NLRB No. 46 (December 15, 2012).

Facts

Piedmont Gardens is a continuing-care facility in Oakland, California. In June 2011, Charge Nurse Barbara Berg notified the facility’s human resources direc­tor, Alison Tobin, that she had seen certified nursing assistant (CNA) and unit employee Arturo Bariuad sleeping while on duty. Tobin asked Berg to prepare a written statement so that the facility could begin an investigation; Tobin informed Berg that her statement would be confidential. Berg prepared a written statement, as requested.

Charge Nurse Lynda Hutton also allegedly observed Bariuad sleeping on duty. After she learned that Berg had re­ported Bariuad’s actions to management, Hutton wrote a statement reporting Bariuad’s conduct and slipped it under Tobin’s door. No one had asked Hutton to create a statement, nor was she given any assurances of confidentiality. However, the record established that, in making the statement, Hutton assumed that it would be kept confidential. One or two days later, she submitted a second statement to clarify the date of the alleged incident.

Tobin also asked CNA Ruth Burns, who was the only other unit employee working the night shift with Bariuad, to prepare a statement documenting instances that she witnessed Bariuad sleeping while on duty. Consistent with the facility’s general policy, Tobin assured Burns that her statement would be confidential. Burns complied with Tobin’s request and prepared a statement.

After reviewing the witness statements, the facility terminated Bariuad’s employment. Following Bariuad’s termination, Union Representative Donna Mapp sent the facility’s acting human resources director, Lynn Morgenroth, an information request. Mapp requested, in relevant part, “(a)ny and all state­ments that [were used] as part of your investigation into Mr. Arturo [Bariuad]” as well as “(t)he names and job title of everyone [who] was involved in the investigation.” On June 17, the Union filed a grievance over Bariuad’s termination and, that same day, Morgenroth responded to the Union’s information request via email. Morgenroth informed the Union that Piedmont Gardens would not provide the names or the job titles of the individuals who witnessed Bariuad’s alleged misconduct. Morgenroth also denied the Union’s request for witness statements, stating:

The employer conducted a confidential investigation regarding the allegations, as such disclosures of this information would breach witness confidentiality. The Grievant (whom you represent) was present when the incident(s) occurred, so you already have this information. The law does not require that we provide you with witness statements collected during our investigation. See Anheuser-Busch, 237 NLRB 982 (1978); Fleming [Cos.], 332 NLRB 1086 (2000); Northern Indiana Public Service [Co.], 347 NLRB [210] (2006). However, the Company would like to work with the Union regarding an accommodation to disclosure. Mr. Bariuad’s statement is included in his HR file, attached.

Thereafter, Piedmont Gardens never furnished the re­quested information to the Union.

The Majority’s Decision

The issues before the Board were whether Piedmont Gardens violated Sections 8(a)(5) and (1) of the NLRA by failing to provide the Union with the names, job titles, and/or written statements of three individuals who claimed that they witnessed an employee sleeping that resulted in the employee’s termination.

Section 8(a)(5) of the Act imposes on an employer the general obligation to furnish a union with relevant in­formation necessary to the union’s proper performance of its duties as the collective-bargaining representative of its employees, including information that the union needs to determine whether to take a grievance to arbitration absent settlement. The Board applies a liberal test to determine whether information is relevant; the issue is whether the requested information is of “probable” or “potential” relevance.

If a party asserts that requested information is confidential, the Board balances the union’s need for the relevant information against any legitimate and substan­tial confidentiality interests established by the employer. The party as­serting the confidentiality interest bears the burden of establishing that interest. Further, “a party refusing to supply information on confidentiality grounds has a duty to seek an accommodation.”

Notwithstanding the employer’s general duty to pro­vide relevant information, the Board in Anheuser-Busch created a broad, bright-line exception, holding that “the ‘general obligation’ to honor requests for information … does not encompass the duty to furnish witness statements … .” In creating this rule, the Board concluded that witness statements are fundamentally different from other types of information requested by unions, and that “disclosure of witness statements involves critical considerations which do not apply to requests for other types of information.”

The current Board rejected the premise of Anheuser-Busch that witness statements are fundamentally different from the types of information requested by unions: “If relevant and necessary to the union’s representative duties, then requested information is, at bottom, fundamentally the same for purposes of the Act. This is particularly true in the grievance context, where unions must decide whether to expend limited resources processing a grievance at all.” The Board determined that this case presented an opportunity to consider whether it should apply the same standard it uses for disclosure of confidential information to witness statements.

The Board acknowledged that, “in some cases, there will be legitimate and substantial confidentiality interests that warrant consideration, including the risk that em­ployers or unions will intimidate or harass those who have given statements, or that witnesses will be reluctant to give statements for fear of disclosure.” But the Board noted that the same risks are presented by the disclosure of witness names, for which there is no exemption, even where an employer asserts good-faith concerns of confidentiality, threats, or coercion.

The Board found no basis, however to assume that all witness statements, no matter the circumstances, warrant exemption from disclosure:

Rather, we find it more appropriate to apply the same flexible approach that we apply in cases involving witness names. That test requires that if the requested information is determined to be relevant, the party asserting the confidentiality defense has the burden of proving that a legitimate and substantial confidentiality interest exists, and that it outweighs the requesting party’s need for the information. The Board considers whether the information withheld is sensitive or confidential based on the specific facts in each case. As stated above, the party asserting the confidentiality defense may not simply refuse to furnish the requested information, but must raise its confidentiality concerns in a timely manner and seek an accommodation from the other party.

Because this decision marked a departure from longstanding precedent, and many employers have come to rely on the Anheuser-Busch exemption, the Board concluded that retroactive application of its new approach to employers would work an injustice.

Based on the foregoing reasoning, the Board adopted the judge’s finding that Piedmont Gardens violated Sections 8(a)(5) and (1) of the Act by refusing to provide the requested names and job titles of the witnesses. Turning to the statements themselves, the Board found that the statements of Berg and Burns were “witness statements” within the meaning of Anheuser-Busch. It therefore affirmed the judge’s finding that Piedmont Gardens did not violate the Act by failing to provide the Union with their statements.

However, the Board found that Charge Nurse Hutton’s statements were not “witness statements.” For a statement to be exempt under Anheuser-Busch, the statement must be adopted by the witness, and assurances must have been given to the witness that the statement will remain confidential. “Here, although Hutton assumed that her statements would be confidential because of the Respondent’s general policy regarding such statements, she was not prompted to give the statements by any assurance of confidentiality. In fact, at no time was Hutton given any affirmative assurance that her statements would be kept confidential. Rather, the record establishes that Hutton gave the statements because it was one of her job duties to do so.” Accordingly, the Board found that Hutton’s statements were not subject to the Anheuser-Busch exemption and that Piedmont Gardens therefore violated Sections 8(a)(5) and (1) by failing to provide her statements to the Union.

The Dissent

In yet another dissent, outgoing Board member Brian Hayes argued that the bright-line rule of Anheuser-Busch, which has been applied since 1978, serves long-recognized important labor policies. “The rule protects the integrity of the arbitration process, protects employee witnesses who participate in workplace investigations from coercion and intimidation, and enables employers to conduct effective investigations into workplace misconduct.”

Conclusions

After Piedmont Gardens, employers should not assume that witness statements obtained during workplace investigations will be protected against disclosure to unions. Instead, in obtaining such statements, employers should balance the need for and value of the statement against the harm that could be done if the statement is disclosed to the union.