WORKPLACE INVESTIGATIONS » Confidentiality of witness statements no longer assured under new NLRB decision

ConfidentialityFor over 30 years, labor law protected the confidentiality of witness statements conducted by employers in workplace investigations. Employers were not required to turn over witness statements to unions in grievances, and thus, witnesses were protected from potential harassment or retaliation by co-workers or union representatives. Yet, the National Labor Relations Board (NLRB) ended this clear rule recently in Piedmont Gardens, 359 NLRB No. 46 (2012), thereby overturning another long-standing labor law precedent.

In this case, the employer, a continuing-care facility in Oakland, asked two employees to prepare written statements in a workplace investigation of a co-worker sleeping on the job. The employer promised both employees confidentiality. The co-worker was discharged, based in part on the information in the employee statements. When the union grieved the discharge, the union requested copies of the witness statements. The employer, believing it was well within its rights under NLRB case law dating back to 1978, declined to produce the witness statements.

The NLRB noted the general obligation of the employer to furnish a union with relevant information necessary to the union’s representation role of the employees under the collective bargaining agreement, including information necessary for a union to determine whether to take a grievance to arbitration. The Board also acknowledged its own case law holding that witness statements were confidential and protected from disclosure to the union. The current Board stated, however, that it viewed such case law as “flawed.” With that the NLRB tossed aside a rule that had enhanced witness confidentiality for decades.

In place of the prior clear rule, the NLRB adopted a balancing test examining the union’s need for the relevant information against “any legitimate and substantial confidentiality interests established by the employer.” The Board indicated that it would consider whether any withheld statements are “sensitive or confidential” based on the facts of each case. The Board also required the employer to seek an “accommodation” from the union if the employer sought to not produce the witness statements.

The consequences for employer investigations of workplace complaints could be substantial. Employees may be less forthcoming or unwilling to participate in workplace investigations if employers are unable to promise confidentiality. Producing the witness statements will likely result in co-workers learning what information the witnesses provided and increase the possibility for harassment or retaliation toward witnesses. The Board’s new rule also is at odds with federal anti-discrimination law which obligates employers to conduct harassment investigations in a confidential manner.

The new rule requires employers with represented employees to assess their investigation procedures and determine how to establish the need for confidentiality of witness statements. Merely promising employees with confidentiality in the investigation will no longer be sufficient. Documenting specific concerns for confidentiality and the sensitive nature of the information provided by witnesses from the outset of the investigation should be part of the employer’s investigation protocol.