• NLRB Revisits Disclosure of Witness Statements
  • January 28, 2013 | Authors: Howard M. Bloom; Philip B. Rosen
  • Law Firms: Jackson Lewis LLP - Boston Office ; Jackson Lewis LLP - New York Office
  • One day after applying and explaining its long-standing precedent, articulated in Anheuser-Busch, 237 NLRB 982 (1978), that all written statements by employee-witnesses are automatically exempt from disclosure as long as they qualify as “witness statements,” the National Labor Relations Board, in Piedmont Gardens, 359 NLRB No. 46 (Dec. 15, 2012), decided to overrule Anheuser-Busch.  The Board now will apply a “balancing test,” and will weigh the union’s need for the information against “any legitimate and substantial confidentiality interest established by the employer,” much as the Board has done with other information asserted to be confidential.  In other words, witness statements no longer will enjoy any special protection from disclosure pursuant to information requests.

    Piedmont Gardens involved a continuing-care facility in Oakland, California and the alleged misconduct by employee Arturo Bariuad, a certified nursing assistant (CNA). A charge nurse, Barbara Berg, who had first notified the employer’s human resources director of the alleged misconduct, was requested to prepare a written statement.  Berg was assured the statement would be confidential.  Another charge nurse, Lynda Hutton, also observed the misconduct and, without any assurances of confidentiality, on her own initiative wrote two statements which she gave to the employer. (She later said she assumed they would be kept confidential.)  A CNA, Ruth Burns, who worked the same shift as Bariuad, was asked to prepare a statement documenting instances in which she had observed Bariuad sleeping while on duty.  Burns was assured her statement would be confidential.

    After reviewing the statements, the employer terminated Bariuad. Bariuad’s union requested all of the statements and filed a grievance over Bariuad’s termination.  The employer refused to produce the statements, citing Anheuser-Busch.  The union then filed an unfair labor practice charge against the employer and the case reached the NLRB.

    In its extensive decision, the NLRB abandoned its automatic “witness statement” test and replaced it with a “balancing test” pursuant to the U.S. Supreme Court’s Detroit Edison decision, 440 U.S. 301 (1979), to determine whether a written statement by an employee-witness must be produced to a union. Under this new test, the NLRB will balance the union’s need for the information against “any legitimate and substantial confidentiality interest established by the employer.” Thus, the party asserting confidentiality will have to prove that a legitimate and substantial confidentiality interest exists which outweighs the need for the information by the party that requested the information.  The NLRB will consider whether the information withheld is sensitive or confidential based on the specific facts in each case. The NLRB noted, however, that even where a legitimate and substantial confidentiality interest outweighs the union’s need for the requested information, “a party refusing to supply information on confidentiality grounds [cannot simply refuse to provide the information; it] has the duty to seek an accommodation.”  Thus, the party asserting the confidentiality defense must raise its confidentiality concerns in a timely manner and seek an accommodation from the other party.

    In Anheuser-Busch, the NLRB had based its witness statement exception to the duty to provide information on its view that witness statements “are fundamentally different from [other types of relevant information].”  According to Anheuser-Busch, “disclosure of witness statements involves critical considerations which do not apply to requests for other types of information,” such as the possibility that witnesses might be reluctant to give statements at all absent assurances against pre-hearing disclosure.  In Piedmont Gardens, however, the NLRB decided that witness statements are no different than other types of relevant information.  At bottom, it held that “relevant information is relevant information,” which is particularly true in the grievance context since a union has to decide whether to “expend limited resources processing a grievance at all.” 

    Responding to dissenting (now-former) Member Brian Hayes’s concerns that the NLRB’s application of the balancing test will adversely affect an employer’s ability to conduct internal investigations and to protect employee witnesses from harassment or intimidation, the NLRB said that its balancing test is designed to take into account any legitimate and substantial confidentiality interest that an employer may have, including concerns about witness intimidation. According to the NLRB, the employer must “demonstrate[] a reasonable concern regarding confidentiality, harassment, or coercion...”  If such concerns exist, the employer will not have to produce the requested information — it will simply need to seek an accommodation from the union.

    Because the decision is a departure from longstanding precedent and many employers have relied on Anheuser-Busch, the Board held Piedmont Gardens will not apply retroactively.  Thus, in Piedmont Gardens, and all other cases where the employer’s refusal to provide requested witness statements occurred before December 15, 2012, the NLRB will continue to apply Anheuser-Busch.

    In Piedmont Gardens, applying Anheuser-Busch, the NLRB decided that the statements of Berg and Burns indeed were witness statements and, therefore, exempt from disclosure.  However, it found that Hutton’s were not, primarily because they were not provided under an assurance of confidentiality.  Therefore, according to the Board, the employer violated the NLRA by failing to give them to the union.

    Piedmont Gardens also involved the related issue of disclosure of witnesses’ names and job titles, which the union had requested as well.  That information has been subject to the Detroit Edison balancing test for many years. In Piedmont Gardens, the NLRB decided the employer had not shown the witnesses’ names and job titles were confidential, and therefore, the employer had to disclose them.

    Despite the fact that an automatic exemption from disclosure no longer exists for witness statements, employers still can take steps to increase the likelihood that they can protect such statements when the balancing test is applied by:

    • Always providing assurances of confidentiality to witnesses prior to asking them to provide statements.
    • Documenting specific concerns about the employer’s inability to obtain witness statements in the future if disclosure takes place.
    • Documenting any actual or threatened harassment or intimidation of witnesses.
    • Demonstrating a reasonable concern for confidentiality, harassment or coercion.
    • Raising confidentiality concerns in a timely manner.
    • Preparing to offer an accommodation, because an employer which shows it has a legitimate and substantial confidentiality concern still must seek an accommodation from the union .  Possible accommodations could involve, for example, providing a synopsis of the statement or providing the statement pursuant to a protective order agreement in which the union agrees not to copy the statements and to limit their further disclosure and  use.

    The NLRB ended 2012 with a flourish, overruling two long-standing precedents and issuing other significant rulings in the course of one month.  Employers should expect more of the same in 2013.