Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...
June 29 — Overruling a long-standing precedent, the National Labor Relations Board June 26 held that employers have no blanket right to deny union requests for access to witness statements that are secured during a company investigation.
The board held in Anheuser-Busch Inc., 237 N.L.R.B. 982, 99 LRRM 1174 (1978), that witness statements were distinguishable from other information that a unionized employer must provide to a bargaining agent. NLRB Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Lauren McFerran disagreed, and said union requests for relevant information should be granted unless an employer can demonstrate a substantial interest in keeping them confidential.
Members Philip A. Miscimarra and Harry I. Johnson dissented from the decision to overrule Anheuser-Busch. Both said the 1978 ruling has protected the integrity of workplace investigations and should not be rejected by the board.
The new decision represents the NLRB's second attempt to overrule Anheuser-Busch.
In December 2012, Pearce and then-Members Richard F. Griffin and Sharon Block decided that American Baptist Homes of the West, which operates the Piedmont Gardens continuing care facility, had an obligation to turn over witness statements requested by Service Employees International Union, United Healthcare Workers-West, which represents employees at the facility (359 N.L.R.B. No. 46, 194 LRRM 1406 (2012)). Then-Member Brian E. Hayes dissented.
However, the board set aside that ruling after the U.S. Supreme Court held in NLRB v. Noel Canning, 134 S. Ct. 2550, 199 LRRM 3685 (2014) that President Obama's January 2012 recess appointments to the NLRB, including those of Griffin and Block, were unconstitutional.
The current board considered the case de novo, and ruled 3-2 that Anheuser-Busch should be overruled.
Citing NLRB v. Acme Industrial Co., 385 U.S. 432, 64 LRRM 2069 (1967), the board said the National Labor Relations Act gives a unionized employer a general obligation to provide information relevant to a union's performance of its bargaining duties, including information the union needs to reach a decision on whether or not to pursue a grievance to arbitration.
Pearce, Hirozawa, and McFerran wrote Anheuser-Busch “created a broad, right line exception” for witness statements but “we are not persuaded that witness statements are so fundamentally different from other types of information that a blanket exemption from disclosure is warranted.”
The board majority acknowledged that there may be some cases in which an employer has legitimate and substantial interests that “must be accommodated,” such as avoiding witness intimidation or harassment. However, they stressed, “there is no basis for concluding that all witness statements, no matter the circumstances, warrant exemption from disclosure.”
As it did in the 2012 decision, the board acknowledged that overruling Anheuser-Busch is a departure from precedent. Piedmont Gardens relied on that precedent in denying the union access to witness statements, and the board said the employer's conduct was “unquestionably lawful at the time.”
The board said it will apply its new standard prospectively. “[I]n the present case and all other cases where the employer's refusal to provide requested witness statements occurred before the date of this decision,” the board members wrote, “the Board shall apply Anheuser-Busch in evaluating the lawfulness of the employer's conduct.”
In the future, however, the board said it will require employer production of witness statements on the same basis that it now requires the production of witness names—“if the requested information is relevant, the party asserting the confidentiality defense has the burden of proving that it has a legitimate and substantial confidentiality interest in the information, and that it outweighs the requesting party's need for the information.”
Applying the 1978 standard to Piedmont Garden's conduct, the board found the employer lawfully withheld several statements but violated its duty to bargain under the NLRA by refusing to give the union a statement from one employee who gave a statement in the courts of her job duties without any assurance of confidentiality from the employer.
Dissenting from the overruling of Anheuser-Busch, Miscimarra said “[w]hen employees step forward to provide information that may involve a coworker's misconduct, there is little question that they risk coercion, intimidation, harassment, and retaliation, and this risk is especially high if the employer is required to disclose their witness statements to a union.”
By overruling the 1978 precedent, Miscimarra said, “the Board is substantially undermining workforce investigations, to the detriment of employers and employees alike.” He warned the “predictable result” of the board's decision will be that fewer employees will be willing to provide witness statements, and employers will be less effective in conducting investigations that are often critical to maintaining safe and legally compliant workplaces.
Johnson said “strong confidentiality concerns are inherent to all internal employer investigations into employee misconduct,”
Compelling employers to surrender witness statements to union representatives will “undermine an employer's ability to investigate claims of workplace violence, harassment, theft, drug and alcohol use, and other forms of serious misconduct in the workplace,” Johnson wrote.
To contact the reporter on this story: Lawrence E. Dubé in Washington at email@example.com
To contact the editor responsible for this story: Susan J. McGolrick at firstname.lastname@example.org
Text of the opinion is available at http://www.bloomberglaw.com/public/document/NLRB_Board_Decision_American_Baptist_Homes_of_the_West_dba_Piedmo.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)