NLRB Overrules Longstanding Precedent, Provides Opportunity For Unions To Obtain Confidential Witness Statements Used In Internal Investigations

by Franczek Radelet P.C.
Contact

Since 1978, employers had not been required to disclose witness statements provided in internal investigations to unions deciding whether to pursue various grievances. All that changed last week when the NLRB overturned its longstanding Anheuser-Bush precedent and made it easier for unions to acquire such statements, even if deemed confidential by the employer. This radical decision comes on the heels of another departure from established precedent, as we previously reported.

In American Baptist Homes of the West d/b/a Piedmont Gardens, the NLRB examined a fairly standard union request following the termination of an employee for sleeping on the job. The union requested that the employer produce all witness statements used in its investigation and the names and job titles of all employees involved in the investigation. The employer objected to producing the witness statements, which were protected under the bright line rule established by the NLRB in its 1978 Anheuser-Busch decision. Nonetheless, the union ultimately filed an unfair labor practice charge against the employer for failing to produce the statements.

The NLRB found Anheuser-Busch to be “flawed” and instead adopted the balancing test set forth in Detroit Edison, a 1979 Supreme Court decision. Under Detroit Edison, if requested information is relevant, then the party refusing to produce the information on the basis of confidentiality must prove “that a legitimate and substantial confidentiality interest exists, and that it outweighs the requesting party’s need for the information.” The NLRB championed this “flexible approach,” reasoning that it “adequately protects the interest of the employer and witnesses, while preserving the general right of requesting unions to obtain relevant information.” While this balancing test was previously only applied to requests for witness names, the NLRB chose to extend it to witness statements as well.

Dissenting Member Hayes stated that the majority’s decision will adversely affect an employer’s ability to conduct confidential investigations and protect witnesses from harassment, intimidation, and retaliation. The majority addressed this argument by highlighting the fact that such concerns may still outweigh a union’s request for witness statements, but that such a determination must now be made on a case-by-case basis, and not subject to a blanket prohibition. Member Hayes also pointed out that this case-by-case approach would foster uncertainty, resulting in unnecessary, burdensome unfair labor practice litigation that would “grind to a halt” the private grievance arbitration machinery that typically form the basis for such requests. 

The Piedmont Gardens decision represents a marked, pro-union departure from previous precedent. As a result of the decision, employers can no longer assert a blanket refusal to provide unions with witness statements used in internal investigations. Rather, employers must argue that confidentiality concerns outweigh the union’s right to the information. How this new balancing test will be applied is unclear, but it may not be wise for employers to take their chances with a generally pro-union NLRB. For these reasons, it is imperative that employers seek legal counsel to weigh their options before responding to such union requests. 

More Information

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.
Contact
more
less

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.