Reconsidering its many pre-Noel Canning cases, the NLRB in Piedmont Gardens not surprisingly held again this week that employers cannot withhold witness statements from unions as a matter of general practice. And with that decision so goes nearly 40 years of precedent, in place across both Democratic- and Republican-appointed boards.
So what happened?
First, a quick bit of history. In 1978 the NLRB held in Anheuser-Busch, 237 NLRB 982 (1978), that employers had the general right to refuse to provide witness statements to unions. The Board based this rule on the reasoning that “the premature release of witness statements risked employer and union intimidation of potential witnesses, as well as the possibility that witnesses might be reluctant to give statements at all absent assurances against prehearing disclosure.” This bright-line rule made labor practice easy for everyone: If the union demanded witness statements in a request for information, an employer could decline to produce them, and that was that. The rule and its rationale made sense.
Overruling Anheuser-Busch, the Board majority in Piedmont Gardens concluded that disclosure or nondisclosure of witness statements now depends on a balancing of interests between the union’s right to information against “legitimate and substantial confidentiality interests established by the employer,” as explained in the Supreme Court’s 1979 Detroit Edison case. This result of course requires more work by an employer and also exposes the employer to a potential unfair labor practice charge if its balancing of interests differs from the Board's view.
How does this balancing of interests work? That’s the tricky part.
Labor law presumes, or at least very strongly encourages, employers having to produce information sought by a union. Therefore, an employer needs to dig hard and deep for those “confidentiality interests” the Board and Supreme Court hold are worthy of protecting.
Some practice tips for employers considering whether to withhold witness statements:
1. Depending on the nature of the investigation generating the witness statements, legal counsel for the employer should either interview the witnesses themselves and create the statement or direct nonlawyers, in writing, to conduct the investigation and create a work-product privilege shield.
2. If there is a possibility of witness intimidation or retaliation, ask and document the witness’ concern about such conduct and document the witness’ request for protection against disclosure of the statement. Also document any examples of existing harassment or retaliation toward the witness.
3. With investigations arising from discrimination charges or complaints – especially by a supervisor of a complaining party – rely on the EEOC’s Enforcement Guidance dealing with vicarious liability for supervisor’s conduct. Significantly, that guidance states:
“An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible. An employer cannot guarantee complete confidentiality, since it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses. However, information about the allegation of harassment should be shared only with those who need to know about it. Records relating to harassment complaints should be kept confidential on the same basis.”
Dissenting Member Johnson noted in Piedmont Gardens that the EEOC itself in separate guidance requires confidentiality of witnesses in its own internal investigations. And in an interesting bit of questionable due process, the NLRB itself refuses to turn over its witness affidavits in a complaint hearing until right after the witness testifies. Why? Ostensibly, to protect witnesses.
4. Immediately raise confidentiality concerns in your response to the union’s request for information; don’t assert your concern weeks or months later, as an afterthought, when responding to an unfair labor practice charge from the union.
5. Consider negotiating a nondisclosure agreement (NDA) with the union to narrowly limit disclosure and use of the witness statement. The Board’s majority in Piedmont Gardens noted that an NDA could be a reasonable accommodation to the union requesting a witness statement. Alternatively, offer to provide an accurate summary of the witness statement in lieu of the statement itself.
6. Ultimately, you may want or need to produce a witness statement if you intend to use it later in an arbitration, administrative proceeding, or litigation. If you plan on using it later for substantive proof (as opposed to merely impeachment), cough it up now and move on. You’ll avoid a donnybrook later when you introduce the statement into evidence.
A couple final comments. If an employer knows or suspects the union has taken witness statements, demand them. Unions have to respond to relevant requests for information from employers. The duty to provide information under NLRB precedent is mutual and reciprocal. Turnabout is fair play.
Also, the Board’s Piedmont Gardens decision arose in a unionized workplace, based on rationale and obligations that apply specifically to unions and employers in their bargaining relationship. As we know, however, the Board has tremendously expanded the reach of the NLRA to nonunionized workplaces. While Piedmont Gardens should not apply in a nonunionized context, don’t dismiss that possibility. We’ve seen more than once this Board’s efforts to forcefully hammer a square peg into a round hole. Forewarned, therefore, is forearmed.