NLRB Overrules 36-Year Precedent: Confidential Witness Statement Production Now Subject to Balancing Test

The National Labor Relations Board (NLRB) recently ruled that witness statements are no longer subject to blanket protection from production to a union. In issuing this decision, a divided NLRB overruled a 36-year bright line rule that allowed unionized employers to refuse to produce confidential witness statements to unions. Going forward, all unionized employers will be required to provide witness statements to labor representatives when the witness statement is deemed to be relevant and the employer cannot establish that the need for confidentiality outweighs the union's need for the statement.

In American Baptist Homes d/b/a Piedmont Gardens, a charge nurse reported to her supervisor that a certified nursing assistant had been sleeping while on duty. Her supervisor asked the nurse to prepare a witness statement so that he could begin an investigation. The supervisor also assured the nurse that her statement would be kept confidential. After conducting an investigation and obtaining additional statements, the employer terminated the certified nursing assistant's employment for sleeping while on duty. The union subsequently requested all statements that were used in the employer's investigation and the names of all individuals who were involved in the investigation. The employer refused to furnish the requested information to the union on the grounds the witness statements and names were confidential. The union subsequently filed a grievance over the certified nursing assistant's termination.

Section 8(a)(5) of the National Labor Relations Act (NLRA) imposes a general obligation on an employer to furnish a union with relevant information necessary to the union's proper performance of its duties as the collective-bargaining representatives of its employees, including information that the union needs to determine whether to take a grievance to arbitration. In general, the NLRB and courts have found that information that aids the arbitral process is relevant and should be provided. In evaluating the employer's decision to withhold the witness statements, the NLRB explicitly overruled the precedent set in Anheuser-Busch whereby confidential witness statements were not required to be furnished upon the union's request. Instead, the NLRB found that the production of witness statements is better evaluated pursuant to the "balancing test" set forth in Detroit Edison. Under Detroit Edison, when a union requests relevant information, an employer who wants to withhold the information needs to show it has a legitimate and substantial confidentiality interest that outweighs the union's need for the information. 

By applying the Detroit Edison test to witness statements, Piedmont Gardens requires employers to provide witness statements acquired during an investigation  to a union upon request, unless, on a statement-by-statement basis, the employer can show it has a substantial interest in keeping the witness statement confidential. In Piedmont Gardens, the NLRB made clear that an employer's blanket policy of keeping witness names and statements confidential to prevent harassment is insufficient to outweigh the union's need for the information. Only when there are facts that substantiate a reasonable basis to believe that the witness employee would be subject to harassment may an employer withhold such witness statements. Employers will need to point to specific facts indicating the necessity of confidentiality to be successful in refusing to provide relevant witness statements to a union upon the union's request. 

For more information on this topic, please contact any Faegre Baker Daniels labor and employment lawyer.