Lawyers Spar Over NLRB's Witness Statement Ruling

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...

By Lawrence E. Dubé

June 23 — A California senior care facility contends that the National Labor Relations Board got things wrong when it overruled a 37-year-old precedent on union access to employee witness statements, but the NLRB and a labor union are pushing back with their own legal arguments to a federal appeals court ( Am. Baptist Homes of the W. v. NLRB, D.C. Cir., No. 15-1445, briefs submitted 6/16/16 ).

In Anheuser-Busch Inc., 237 N.L.R.B. 982, 99 LRRM 1174 (1978), the board held that a unionized employer didn't have to show union representatives witness statements that were obtained from employees subject to a promise of confidentiality, but the board overruled the precedent in a 3-2 decision against American Baptist Homes of the West in 2015 (362 N.L.R.B. No. 139, 203 LRRM 1717 (2015)).

American Baptist Homes, which does business as Piedmont Gardens in California, argues that the NLRB has adopted an “unreasoned and irrational” conclusion that witness statements are just like other relevant information that should be released to a union investigating a grievance.

However, the NLRB and SEIU United Healthcare Workers-West argue that Piedmont Gardens lacks standing to appeal the NLRB ruling's new policy on witness statements, which the board said it would only apply prospectively. The employer complained it will have to abide by the NLRB's new policy in the future, but the board said such an allegation was “too speculative to establish standing.”

NLRB Set Anheuser-Busch Standard in 1978

Under the Supreme Court's decision in NLRB v. Acme Industrial Co., 385 U.S. 432, 64 LRRM 2069 (1967), the National Labor Relations Act generally requires a unionized employer to provide information relevant to a union's performance of its bargaining duties, including decisions on whether to pursue a grievance to arbitration.

However, in Anheuser-Busch, the board said the employer was not required to give an Electrical Workers local witness statements that managers secured before an arbitration by promising employees the statements would be kept confidential.

Even if the statements were relevant to pending grievances, the Anheuser-Busch board said, “requiring either party to a collective bargaining relationship to furnish witness statements to the other party would diminish rather than foster the integrity of the grievance and arbitration process.”

Precedent Overruled by Piedmont Gardens

However, in the board's 2015 Piedmont Gardens decision, Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Lauren McFerran said they did not believe witness statements are “fundamentally different” from other types of information.

They concluded there shouldn't be a “blanket exemption” and that union requests for such statements should be granted unless there are particular circumstances that would make disclosure inappropriate.

The board overruled Anheuser-Busch and said it would apply its new policy in future cases rather than retroactively.

Employer Seeks D.C. Circuit Action

Piedmont Gardens told the court in its principal brief that Anheuser-Busch allowed employers to give employees assurances that if they provided written statements during investigations, they would be kept confidential and withheld from a union.

Under the board's new policy, the company said, it can withhold such a statement only if it has specific evidence showing a “legitimate and substantial confidentiality interest.”

The board didn't claim that Anheuser-Busch interfered with the ability of unions, the company argued, and didn't “base its departure from longstanding precedent on any articulated change in the American workplace, technology, or a need to clarify its precedent,” the employer argued.

Calling the board ruling “a solution in search of a problem,” Piedmont Gardens urged the D.C. Circuit to vacate the NLRB order.

NLRB, Union Argue Company Lacks Standing

The NLRB responded in its brief that the employer lacks standing to challenge the board's announcement that it was overruling Anheuser-Busch and will not follow the 1978 precedent in future cases.

The NLRB said its decision didn't impose a “concrete and particularized injury” on the employer, and the D.C. Circuit doesn't have jurisdiction to review the overruling of Anheuser-Busch.

SEIU United Healthcare Workers-West took a different approach in its brief.

The union acknowledged the NLRB's position that Piedmont Gardens lacks standing to challenge the NLRB's new standard on witness statement disclosure, but it also argued that if the court rules for Piedmont Gardens on the standing issue, it should approve the board's new policy.

The union argued that workplace investigations have become “more commonplace, more intrusive and more extensive” since 1978 and the board's new policy “is a rational decision that brings witness statements under the balancing test applied in all other cases involving assertions that requested information is confidential.”

Employer Says Freedom Already Curbed

Piedmont Gardens filed a reply brief addressing the NLRB's standing argument.

The care facility operator told the appeals court that the board's pivot to a new position on the disclosure of witness statements is “ripe for review.”

The NLRB's new position has already affected the employer's ability to obtain witness cooperation by making assurances about confidentiality, the company said, and it urged the court to set aside the board's order.

DLA Piper LLP in San Francisco represented American Baptist Homes of the West. Weinberg, Roger & Rosenfeld in Alameda, Calif., represented SEIU United Healthcare Workers-West, and NLRB attorneys in Washington represented the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

For More Information

Text of American Baptist Homes of the West's brief is available at http://src.bna.com/f93 and its reply brief is at http://src.bna.com/f96. The NLRB's brief is at http://src.bna.com/f92 and the brief of SEIU United Healthcare Workers-West is at http://src.bna.com/f94.

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.