The National Labor Relations Board (the Board) recently held that employers may be required to provide unions with access to witness statements taken during internal investigations in connection with the grievance and arbitration process. American Baptist Homes of the West d/b/a Piedmont Gardens, 362 N.L.R.B. No. 139 (June 26, 2015) (herein "Piedmont Gardens"). The Board's ruling overturns 37 years of precedent first established by Anheuser-Busch, 237 N.L.R.B. 982 (1978), which provided employers a blanket exemption from having to produce to union representatives witness statements taken in advance of an arbitration.
The Piedmont Gardens Decision:
In Piedmont Gardens, the Board replaced the bright line rule of Anheuser-Busch with a balancing test that now weighs the employer's interest in confidentiality against the union's interest in securing all information necessary to carry out its representation duties. The NLRB found, however, that an employer "establishing a legitimate and substantial confidentiality interest requires more than a generalized desire to protect the integrity of employment investigations." Id. at 3. Rather, an employer must demonstrate that an "investigation witness need[s] protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, [or] there is a need to prevent a cover-up." Id. Only if this substantial showing is made will the Board favor the employer's interest in confidentiality over the union's need for information. Yet, even if the Board concludes that the employer's confidentiality interest outweighs the union's need for information, the employer cannot simply refuse to provide the witness statements to the union. Rather, the employer "must seek an accommodation that would allow the requester to obtain the information it needs while protecting the party's interest in confidentiality." Id.
Impact on Employers:
Basically, Piedmont Gardens totally reverses Board law on witness statements, from exempting employer disclosure to now giving unions a right to such statements, except in very limited circumstances. Employers must now consider the utility of taking such statements, since it is most likely they will have to provide them to a union prior to an arbitration hearing. If it is necessary to take witness statements, employers must be careful of their contents, as they are now subject to disclosure. Any such statements should be carefully reviewed and vetted before becoming finalized and signed. Employers should also consider use of counsel for internal investigations to potentially shield notes and other aspects of an investigation from disclosure under the attorney-client and attorney work-product privileges.