The National Labor Relations Board continued its attack on long established internal investigation best practices with its recent ruling in American Baptist Homes of the West, 359 NLRB No. 46 (December 15, 2012) in which it overruled Anheuser-Busch, Inc., 237 NLRB 982 (1978). In Anheuser-Busch, the Board had held witness statements obtained during an employer investigation of workplace misconduct are exempt from disclosure in pre-arbitration discovery. That important ruling rightly recognized that workplace investigations often revolve around the confidentiality of witness statements, which are often obtained only after assurances are given that they won't be made public.

But in American Baptist the Board held that "[a]fter careful consideration, we find that the rationale of Anheuser-Busch is flawed." Slip Op. at 2.

Under American Baptist, the prior clear-cut, bright-line rule that witness statements are privileged from disclosure in pre-arbitration information requests is a thing of the past. Now, the rule is that witness statements, if requested, must be disclosed in the absence of the employer establishing legitimate and substantial confidentiality interests, separate from any promise of confidentiality. Further, the employer must always bargain with the union over whether there is another way to accommodate the requested confidentiality.

The American Baptist case involved a workplace investigation at a continuing care facility where a Certified Nursing Assistant had been observed sleeping on the job. The employer collected witness statements from employees who had witnessed the misconduct. Employer representatives apparently gave explicit assurances to one of the employees that the statement would be kept confidential, and another employee also had assumed that her statement would not be disclosed.

The union representative asked for the names and job descriptions of the witnesses and for copies of their statements. The employer's representative declined, specifically relying on the Board's controlling precedent in Anheuser-Busch. Unfair labor practice charges followed, and the case proceeded to trial before an Administrative Law Judge. The Administrative Law Judge ruled the Act required the employer to identify the witnesses. However, the Administrative Law Judge also held that the employer's refusal to turn over the witness statements was protected by the Board's Anheuser-Busch precedent.

The Administrative Law Judge's decision was appealed to the Board. On review, the Board first evaluated the law regarding information requests, noting that under Section 8(a)(5) there is a "general obligation" to supply a union with relevant information that it needs to "determine whether to take a grievance to arbitration absent settlement." The Board then discussed how witness statements fit within this general obligation:

"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. . . .' 237 NLRB at 984-985. In creating this rule, the Board concluded that witness statements 'are fundamentally different from [other types of information deemed discoverable through information requests], and disclosure of witness statements involves critical considerations which do not apply to requests for other types of information."

Slip Op. at 3. Those "critical considerations" were potential for witness intimidation and the reluctance of a witness to give a statement if it were going to be turned over to the union.

The Board brushed aside these thirty-four-year-old considerations, holding:

"To begin, we reject the premise of Anheuser-Busch that witness statements are fundamentally different from other types of [relevant] information. . . 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. That does not mean, of course, that there are not other factors to consider, much less that a union is always entitled to receive the information that it seeks. But we are not persuaded that there is some fundamental difference between witness statements and other types of information that justifies a blanket rule exempting statements from disclosure."

Id. The Board thus overruled Anheuser-Busch and the bright-line exclusion of witness statements from disclosure. In its place, the Board adopted a balancing test derived from Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979):

• If a party asserts that requested information is confidential, the Board will balance the union's need for the relevant information against any legitimate and substantial confidentiality interests established by the employer.
• Merely asserting confidentiality (or that the witness gave the statement pursuant to a promise that it would remain confidential) is not enough – there must be some other, separately stated confidentiality interest;
• The party asserting the confidentiality interest bears the burden of establishing that interest; and
• a party refusing to supply information on confidentiality grounds has a duty to offer an accommodation.

As with some other recent decisions where the NLRB changed existing law, the agency held that the new rule will apply only prospectively.

The American Baptist decision echoes the Board's earlier decision in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), which was noted in our client alert of August 9, 2012. http://www.proskauer.com/en-US/publications/client-alert/nlrb-challenges-long-established-investigation-best-practices/. In Banner Health the Board held that an employer may not give a generalized confidentiality instruction to witnesses in an investigation, in order to protect the integrity of the investigation. Instead, the Board ruled in Banner Health that an employer must first determine whether in any given investigation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover-up.

Taken together, American Baptist and Banner Health constitute an assault on the principle of confidentiality in workplace investigations which will almost assuredly complicate the investigative process for employers. For example, in his dissent in American Baptist, Member Hayes noted that abandoning a bright line rule of an exemption in favor of the confidentiality balancing test will result in even more Board litigation as parties now fight over the disclosure of statements which will result in the grievance procedure "grind[ing] to a halt waiting a final Board decision…." Member Hayes also pointed out that the new rule conflicts with guidance from the EEOC regarding workplace investigations of issues falling under its jurisdiction, which will necessarily create an interagency conflict. Slip Op. at 8-9.

Employers conducting workplace investigations should consider confidentiality concerns specific to each investigation and document those concerns, especially if the investigation involves union-represented employees. Additionally, though the collection of witness statements may still be appropriate, employers should consider whether they are necessary and ensure that employees who supply the statements are aware that the statements may be discoverable by the union prior to any grievance hearing.