Last week we reported that the NLRB reversed 50 years of precedent in a manner favoring unions. As it marched toward the end of 2012, the Board continued this paradigm shift with another recent decision that moves away from long-standing rules governing labor relations and provides more leverage to unions. When an employer imposes discipline following an investigation, the union representing the employee may request copies of the employer’s witness statements. But does the employer have to hand them over? As part of a series of well-publicized decisions the NLRB overturned long-standing precedent (see for example American Baptist Homes of the West d/b/a Piedmont Gardens). Before this recent decision, when an employer had obtained a witness statement with a promise of confidentiality, it was not required to provide a union with a copy. That is no longer the case (See Anheuser-Busch, Inc., 237 NLRB 982). Human resource professionals may see this decision as limiting their ability to conduct thorough investigations of workplace incidents. However, although there is legitimate cause for concern, in most instances, employers can still conduct effective investigations so long as they are mindful of the permissible parameters of the new “rule.”

The new test, though more difficult, is not impossible to meet. For an employer to be able to withhold witness statements, it must be prepared to engage in a “balancing” test; that is, it will have to demonstrate that the “confidentiality interest” in the witness statement outweighs the union’s right to know the identity of the witnesses and the contents of their statements. To meet that test, the employer should be prepared to demonstrate that:

1)  The employee/witness demanded, and was given, an assurance of confidentiality and
2)  The employer has a “legitimate and substantial confidentiality interest” in the statements

What will the NLRB consider to be a “legitimate and substantial confidentiality interest?” Though the Board has not specifically defined the term, it has provided a number of indicators, such as a case of suspected drug use at a nuclear power-generating plant, and a second where employees of a petroleum pipeline revealed knowledge of drug use by co-workers. These two cases demonstrate that legitimate safety concerns will be given considerable weight in tipping the balance in favor of non-disclosure. Along the same lines, the Administrative Law Judge in American Baptist case listed examples when assurances of confidentiality were warranted:

  1. They are a means of encouraging employees to report other employees who may be “acting in ways that endanger themselves,” their co-workers, other persons, or the facility itself.
  2. They are a means of encouraging employees to report criminal activity.
  3. There is credible evidence of safety concerns or concerns over potential retribution (but unsubstantiated fears of retribution will not be enough).
  4. Similarly, when there is a “clear and present danger” that intimidation or harassment of witnesses would occur. (Note that mere “speculative” fears without some supporting evidence will not be enough.)
  5. The employer is following the EEOC Guidance regarding assurances of confidentiality in investigation of workplace harassment.
  6. The contents of the statements would reveal “highly personal information” such as medical records or other facts of a personal nature.
  7. The statements would reveal substantial proprietary information, such as trade secrets.
  8. They contain information that is traditionally privileged (for example, memoranda prepared for pending litigation).

These are by no means the only circumstances when an employer could legitimately decline to hand over to a union witness statements obtained with an assurance of confidentiality, but they are illustrative examples. It should be noted that common to many of them is the element of potential risk of harm to other workers, the facility, or even the employee under investigation. Potential harm to “customers,” including patients in a health care setting, also will be a strong factor tipping the balance.

However, an employer should carefully note that, even when it is able to demonstrate that it has a “confidentiality interest” that outweighs the union’s right to know, it will still have to offer to “accommodate” the union’s request. What form that accommodation will take will vary with the facts but could include, for example, offering a written summary of the facts, or providing statements with the witnesses/names and identifying information deleted, or revealing information with an adequate assurance that there will be no further disclosure, or some combination of these instances of “accommodation.” Such accommodations should be negotiated through an appropriate “meet and confer” process. Moreover, even if no agreement over disclosure can be reached, an employer’s good faith efforts to accommodate the union’s request should be a good defense.