NLRB Ruling on Witness Statements Faces Court Review

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By Lawrence E. Dubé

A California senior care facility is challenging a National Labor Relations Board ruling that requires employers to disclose witness statements related to employee grievances ( Am. Baptist Homes of the W. v. NLRB, D.C. Cir., No. 15-1445, oral argument 2/9/17 ).

The board’s ruling has left the care facility in legal jeopardy and interfered with its ability to conduct thorough and accurate investigations in the workplace, the employer contends. Oral argument is set for Feb. 9 before the U.S. Court of Appeals for the District of Columbia Circuit.

The NLRB will contend that the policy is appropriate and hasn’t injured American Baptist Homes of the West, which does business as Piedmont Gardens.

The board in 2015 (362 N.L.R.B. No. 139, 203 LRRM 1717 (2015)) overruled a 1978 decision that permitted employers to withhold from union officials statements workers gave in confidence. The board said its new policy would apply “prospectively only” to Piedmont Gardens, as well as to other employers.

Impact on Employer Investigations

Attorneys for Piedmont Gardens and Service Employees International Union, United Healthcare Workers-West are expected to tell the court that the board’s action has major implications for employers and unions, but they’ll disagree on what those implications are.

David S. Durham of DLA Piper US LLP in San Francisco represents Piedmont Gardens. He’ll argue that the board acted sensibly when it held in Anheuser-Busch Inc., 237 N.L.R.B. 982, 99 LRRM 1174 (1978), that a unionized employer didn’t have to disclose witness statements that were obtained from employees subject to a promise of confidentiality.

Anheuser-Busch protected employees against intimidation, and overruling the precedent will discourage witnesses from providing information, Durham told Bloomberg BNA. The quality and fairness of employer investigations will deteriorate, Durham predicted.

The union’s attorney, David Rosenfeld of Weinberg Roger & Rosenfeld in Alameda, Calif., disagrees. If employers and unions exchange witness statements they obtain, Piedmont Gardens should result in more thorough investigations and better decisions about employee discipline, Rosenfeld told Bloomberg BNA.

Anheuser-Busch Ruling Limited Disclosures

Under the National Labor Relations Act, a unionized employer generally must honor a union’s request for information that is relevant to a pending grievance.

In Anheuser-Busch, however, the board said the employer didn’t have to give a union witness statements that managers secured before an arbitration by promising employees the statements would be kept confidential.

The Anheuser-Busch board said forcing a release of confidential statements “would diminish rather than foster the integrity of the grievance and arbitration process.”

Board Dropped Traditional ‘Blanket Exemption.’

In the Piedmont Gardens decision, the board overruled Anheuser-Busch and held there shouldn’t be a “blanket exemption” for witness statements. The statements should be released to a union unless special privacy or security concerns justified keeping them confidential, the board said.

The NLRB overruled Anheuser-Busch but acknowledged that Piedmont Gardens and other employers had relied for years on the 1978 precedent.

The board said it would apply its new policy in future cases rather than retroactively.

Employer Claims It’s Already Been Injured

The NLRB is arguing Piedmont Gardens can’t challenge the overruling of Anheuser-Busch because the “prospective” change in policy hasn’t yet affected the California employer, but the company disagrees.

The NLRB has ordered the company not to withhold “requested information that is relevant and necessary to the processing of a grievance,” and Durham said that affects the employer.

The lawyer said that because the NLRB has made it clear that it now believes confidential witness statements can be “relevant and necessary” information that an employer must produce, Piedmont Gardens will be forced to revamp its investigation of important workplace issues.

NLRB attorney Kellie Isbell in Washington will argue the case for the board.

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

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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