34-year-old Precedent Overturned: Employers Obligated to Provide Witness Statements at Union's Request: NLRB

Practical Law Legal Update 4-523-3889 (Approx. 8 pages)

34-year-old Precedent Overturned: Employers Obligated to Provide Witness Statements at Union's Request: NLRB

by PLC Labor & Employment

Key Litigated Issues

In American Baptist Homes of the West, the key litigated issues were:

Whether the NLRB should:
- overrule its holding in Anheuser-Busch, Inc. that witness statements gathered by employers investigating employee misconduct are categorically excluded from the types of information that employers must provide to the unions representing their employees at the unions' requests; or
- extend its holding in Anheuser-Busch, Inc. to categorically exclude production of the names and job titles of employee witnesses who have provided witness statements to employers investigating employee misconduct from the types of information that employers must provide to the unions representing their employees at the unions' requests.
If the NLRB overrules Anheuser-Busch, Inc., what standard should it apply to determine whether employers must provide witness statements to requesting unions.

Background

Under the NLRA, employers have a general obligation to provide unions requested information that is relevant to their representing bargaining unit employees (NLRB v. Acme Indus. Co.). The NLRB has traditionally not required employers to provide unions with witness statements because:

Premature disclosure of witness statements before the employee testified in a proceeding might put witnesses at risk from intimidation by unions or coworkers.
Witnesses might be reluctant to give statements without assurances against prehearing disclosure.
(Anheuser-Busch.)

The NLRB has required that in order to rely on Anheuser-Busch:

Witnesses must adopt their statements.
Employers give assurances that witness statements will be kept confidential.

(N.J. Bell Tele. Co. and El Paso Elec. Co.)

In situations where employers have asserted that relevant information requested by a union is confidential, the Supreme Court developed a balancing test under which the NLRB evaluates whether an employer's legitimate and substantial interest in maintaining the confidential information outweighs, or gives way to, a union's need for the information to represent bargaining unit employees. Even where an employer shows a strong confidentiality interest, the Supreme Court requires that an employer offer an accommodation to preserve confidentiality but provide necessary information to unions (Detroit Edison Co.).

The employer in this case, a continuing care health facility, has employees who are represented by a union. Two charge nurses, Berg and Hutton, and a certified nursing assistant (CNA), Burns, observed another CNA, Bariuad, sleeping on the job. Both of the CNAs were represented by the union and the charge nurses were not. Berg reported the incident to the human resources (HR) director. The employer began investigating and gathered witness statements:

Berg supplied a written statement about her observations which the HR director said would be kept confidential.
Hutton provided an unsolicited written statement to the HR director. The HR director made no assurances to her that the statement would be kept confidential, but Hutton assumed it would be because the employer had a policy and practice of keeping these kinds of statements confidential.
Hutton supplied a supplemental written statement at the HR director's request, again receiving no confidentiality assurances.
At the HR director's request, CNA Burns, the only other bargaining unit employee working on the same night shift as Bariuad, provided a written statement about incidents in which she observed CNA Bariuad sleeping on the job. The HR director assured her that her statement would be kept confidential.

After reviewing these written witness statements, the employer terminated Bariuad.

The union:

Requested, in relevant part:
- any and all statements that were used as part of the employer's investigation into Bariuad;
- the names of everyone who was involved in the investigation; and
- the job title of everyone who was involved in the investigation.
Two weeks late, filed a grievance challenging the discharge.

The employer responded to the information request by:

Refusing, on confidentiality grounds, to produce:
- names of participants in the investigation; and
- job titles of participants in the investigation.
Asserting that the union had the information because Bariuad knew:
- what happened; and
- who was there to observe his misconduct.
Denying that it had any obligation to provide witness statements under extant NLRB law, Anheuser-Busch.
Offering to make an accommodation with the union about disclosure of the substance of the witness statements.

The union requested that the employer make all witnesses available for it to interview. The employer declined this request and offered to provide summaries of the written statements that would not disclose the authors' identities, which the union declined. The employer also provided Bariuad's written statement during the employer's investigation. The union filed unfair labor practice (ULP) charges alleging that the employer failed to bargain in good faith when it refused to provide the requested information.

An NLRB administrative law judge (ALJ) found that:

Under extant NLRB precedent, the witnesses' names and job titles were relevant to the union's representation of Bariuad (NLRB v. Acme Indus. Co.).
The employer failed to show that it had a legitimate and substantial confidentiality interest in the witnesses' names and job titles (Pa. Power Co.).

The ALJ held that the employer:

Unlawfully refused to provide the witnesses':
- names; and
- job titles.
Lawfully refused to provide the witnesses' written statements under Anheuser-Busch.
Lawfully failed to furnish summaries of the witness statements because the union refused to accept summaries as a substitute for producing the statements themselves.

The NLRB's Acting General Counsel, the union and the employer filed exceptions to panel (Board) heading the NLRB's judicial functions to appeal different portions of the ALJ's decision. Among other arguments, the Acting General Counsel and the union asserted that the Board should overrule Anheuser-Busch. The employer asserted that ALJ improperly failed to find that it had legitimate confidentiality interests in the witnesses' names and job titles and that Anheuser-Busch should be extended to these forms of information.

In a separate case, the Board requested amicus briefs about the continued use of the Anheuser-Busch bright-line rule that witness statements be exempt from disclosure requirements under the NLRA (Stephens Media, LLC).

The Board issued a decision dated December 14 in Stephens Media in which it:

Found that the employer unlawfully refused to provide the union with employee statements and notes from investigative interviews of employees because the notes and statements did not qualify as:
- witness statements covered by Anheuser-Busch because the statements were not adopted by the witnesses or given with assurances of confidentiality; or
- attorney work-product, because the notes were not created with the anticipation of litigation.
Decided that the case was not an appropriate one for considering whether to overrule Anheuser-Busch

Outcome

A four-member panel of the Board issued a decision dated December 15, 2012. A 3-1 majority (Member Hayes dissented) decided to:

Overrule, rather than extend the application of, Anheuser-Busch.
Apply the Supreme Court's Detroit Edison balancing test to evaluate employers' alleged confidentiality interests against unions' needs for information relevant to collective bargaining or CBA administration, including grievance administration.
Affirm the ALJ's conclusion that the employer unlawfully refused to provide the names and job titles of the witnesses.

In particular, the majority:

Took administrative notice of amicus briefs from Stephens Media LLC about maintaining or overruling Anheuser-Busch.
Rejected the premise of Anheuser-Busch that witness statements are different from the types of information that employers general must produce on request to unions because:
- they like any other form of information may be relevant and necessary to a union's representative duties; and
- the Board decided Anheuser-Busch before the Supreme Court decided Detroit Edison and therefore did not consider whether the Detroit Edison balancing test should apply to witness statements.
Found case law justifying the withholding of witness statements before witnesses testified in ULP hearings relied on in Anheuser-Busch inapposite to requests for witness statements needed to administer collective bargaining agreements (CBAs).
Since witness names are not generally exempt from employer's production obligations as confidential and generally must be provided, there is no extra threat that witnesses will be coerced if their statements are disclosed to the requesting union.
The Detroit Edison balancing test can adequately protect legitimate and substantial confidential information that may be in witness statements.

The majority also held that the employer unlawfully failed to produce Hutton's statement because it was:

Not a "witness statement" provided with assurances of confidentiality; assumptions of confidentiality based on company policy did not suffice.:
Provided as part of Hutton's job.

Member Hayes dissented from this analysis finding:

In Anheuser-Busch the Board recognized legitimate concerns that if witness statements were not exempt from disclosure requirements, employees:
- were likely to be subject to coercion and intimidation by unions and fellow bargaining unit employees; and
- would be less likely to candidly provide information during employer investigations.
Noted that under Board precedent, just as there is no right to pretrial discovery in ULP proceedings, there is no right to prehearing discovery in labor arbitrations (Cal. Nurses Ass'n) and argued that majority should not inject a statutory obligation to provide witness statements to unions, likely leading to delays in arbitration processes to await the Board's decision on whether any arguably confidential witness statement must be provided before an arbitration hearing.
Asserted that the majority's conclusion that there is no extra threat that witnesses will be coerced if their statements were disclosed to the requesting union because their names are generally disclosed under current Board precedent actually supports extending Anheuser-Busch to exempt disclosure of witness names and other information that would reveal witnesses' identities. The Board had not precluded the release of witness names, in part because the content of their witness statements was confidential.
Asserted that as an alternative to overruling Anheuser-Busch in this case, the Board should require the employer to provide summaries of the witness statements, as it had in earlier decisions.
The Detroit Edison balancing test is inadequate because it:
- is subjective and fact specific;
- is applied after the employer has already committed to asserting confidentiality interests and refusing to provide the witness statements; and
- makes it difficult for employers to give assurances of confidentiality to witnesses until the Board or a reviewing court reviews the contents of their statements.
Forces employers who are investigating employee misconduct that violates other laws, such as anti-harassment laws, to divulge witness statements that it is instructed to keep confidential by, for example, the EEOC.

Separately, a 3-1 majority (Chairman Pearce dissented) held that:

Anheuser-Busch would be applied in this and any pending case regarding the production of witness statements.
Detroit Edison would be applied in any new case regarding the production of witness statements.

Member Pearce inferred from the employer's refusal to provide witness names and job titles that it would have refused to produce the witness statements if the Detroit Edison test were applied retroactively. Accordingly, he would have applied Detroit Edison retroactively here and ordered the production of the witness statements.

Practical Implications

In American Baptist Homes of the West, the Board broadened employers obligations to furnish information to unions at their request. The decision:

Encourages unions to request any and all statements related to investigations of employee misconduct.
Impugns employers' abilities to conduct confidential investigations in unionized workplaces by:
- making disclosure of employee statements more likely; and
- likely discouraging employees from being candid during investigations.
Will likely force employers to seek advice from counsel about applying the Detroit Edison balancing test more often when responding to union document requests.
Suggests, based on the conclusions about the Hutton statement, that employers intending to refuse to produce witness statements, subject to a Detroit Edison balancing of interests, must still:
- give assurances to witnesses of confidentiality (even though the balancing test makes it less certain that the information will remain confidential); and
- have the witnesses formally adopt written statements.
Suggests that unions will be effectively able to obtain many pre-hearing witness statements before arbitration hearings to challenge discipline for employee misconduct as long as they deem the request as related to administration of a CBA rather than as "discovery," which Board precedent precludes.

It is not clear whether the prospectively applied new information production obligation will be reviewed by a federal circuit court of appeals in the near future because:

The employer is not likely to appeal the Board's conclusion that it did not violate the NLRA by failing to produce two statements that were traditional "witness statements".
The General Counsel as a matter of policy does not appeal Board decisions.
The union may have lost the immediate matter but will benefit from the survival of the Board's conclusions going forward.

34-year-old Precedent Overturned: Employers Obligated to Provide Witness Statements at Union's Request: NLRB | Practical Law