Witness Statements: NLRB Junks Precedent

Posted July 14, 2015 at 3:06 pm

The National Labor Relations Board (NLRB) recently reversed its own 37-year precedent that says employers must disclose to unions confidential witness statements gathered during workplace investigations, unless “legitimate and substantial confidentiality interests” outweigh a union’s need for the information. Going forward, according to a June 26 ruling, the NLRB will apply a balancing test to determine whether an employer properly refused to provide witness statements to unions. The test will apply to all cases where the employer’s refusal to provide requested witness statements occurred after June 26, 2015.

The National Labor Relations Act requires employers to provide union representatives with information relevant to the union’s collective-bargaining duties. This duty includes the obligation to provide information regarding the processing of grievances. However, in 1978, the NLRB held that the employer’s duty to provide information to a union does not encompass a duty to furnish witness statements themselves.

In 2012, the NLRB overruled the recognized standard regarding the provision of witness statements. The decision was effectively voided, however, by the Supreme Court’s Noel Canning decision. The current, properly constituted NLRB revisited and reversed the standard.

Under the new standard, an employer will have to establish “legitimate and substantial confidentiality interests” before refusing to provide requested witness statements to a union. The NLRB cautioned that this standard won’t be met by showing a generalized desire to protect the integrity of employment investigations. Rather, an employer will have to establish that there is a need for witness protection, danger of evidence being destroyed, testimony being fabricated, or facts being covered up before the employer will be allowed to withhold witness statements. The NLRB held that an employer will have to “seek an accommodation that would allow the requester to obtain information it needs while protecting the party’s interest in confidentiality.”

In light of this ruling, employers that have union-represented employees will need to decide how workplace investigations will be conducted. The NLRB's decision will affect the ability of all employers covered by the National Labor Relations Act – whether their employees are represented by a union or not – to maintain confidentiality in workplace investigations. The need for confidentiality in an investigation must be determined on a case-by-case basis.

In an investigation involving union-represented employees, witnesses can no longer be assured that their statements will not be disclosed to the union. This may, of course, diminish employees' willingness to disclose information during an investigation. Employers can still inform employees that their witness statements will be treated as confidential on a case-by-case basis, but the designation of a witness statement as "confidential" will not necessarily prevent its disclosure to the union.

When faced with a request from a union for witness statements that are relevant to a grievance or an issue of employee discipline, the confidentiality of witnesses' statements must be balanced against a union's need for the information on a case-by-case basis. Possible accommodations could include redacting the witness names from statements or producing a list of witness names with a summary of the information obtained without attributing the information to any particular witness. Whether a particular accommodation is appropriate will depend on the facts and circumstances of each given case and, ultimately, the proposed accommodation will be subject to good faith negotiation with the union.