Employment And Labor Law Alert: The National Labor Relations Board Changes Course - Witness Statements Obtained During Workplace Investigations May Now Be Discoverable

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Until recently, the National Labor Relations Board's decision in Anheuser-Busch, 237 NLRB 982 (1978), was clear: employers were not obligated to provide witness statements collected during workplace investigations to the union as part of the grievance process. In Piedmont Gardens, Case No. 32-CA-063475 (Dec. 15, 2012), the Board overruled this precedent, finding the rationale "flawed." In wiping away this bright-line rule, the Board held that a "balancing test" should instead be applied, weighing the union's need for the relevant information against any legitimate and substantial confidentiality interests established by the employer.

The facts at issue in Piedmont were straightforward. The employer, which operates a continuing-care facility in Oakland, California, maintained a general policy of assuring employees that their statements made in disciplinary investigations concerning other employees would be confidential. Upon belief that a bargaining unit employee had been sleeping on the job, the employer obtained witness statements consistent with the policy as part of its investigation and ultimately terminated the employee. The union filed a grievance and requested the underlying witness statements. The employer refused the request, citing the 34-year-old rule promulgated in Anheuser-Busch.

Upon review of the unfair labor practice charge filed by the union over the issue, the Board rejected and overruled the "categorical exemption" from disclosure of witness statements as articulated in Anheuser-Busch. In its place, the Board adopted a balancing test. Going forward, any employer asserting a confidentiality interest in such statements "bears the burden of establishing that interest." The Board recognized that, in some cases, there will be legitimate confidentiality concerns, including the risk that unions will intimidate or harass those who have given statements, or that witnesses may be reluctant to give statements for fear of disclosure. Nonetheless, the Piedmont decision downplayed such risks and, altogether, the Board determined that they must be weighed against the union's need for the information.

The new balancing test approach requires employers to engage in a separate inquiry when responding to a union's request for witness statements as part of the grievance process. Further, the Piedmont decision will likely extend the grievance process when confidentiality objections are raised.