“Unpredictable and Potentially Messy”?: NLRB Ruling Could Complicate Employers’ Workplace Investigations

In its June 26 split decision in American Baptist Homes of the West d/b/a Piedmont Gardens and Service Employees International Union, United Healthcare Workers- West, 362 N.L.R.B. No. 139 (Case No. 32-CA-063475) (“Piedmont Gardens”), the National Labor Relations Board (“NLRB” or “Board”) adopted a new standard for union access to employers’ witness statements in discipline cases.  In so doing, the NLRB overruled the 37-year-old standard articulated in Anheuser- Busch, 237 NLRB 982 (1978), that provided a blanket exemption for the disclosure of witness statements.  Instead of a blanket rule, the majority followed the  Supreme Court’s 1979 decision in Detroit Edison v. NLRB, 440 U.S. 301 (1979), which requires a case-by-case balancing of the union’s need for the witness statements against the employer’s “legitimate and substantial confidentiality interests.”

In Piedmont Gardens, a continuing care facility discharged a union-represented certified nursing assistant for sleeping on the job. At least three employees witnessed the incident: Piedmont Gardens requested confidential written witness statements from two employees and accepted an unsolicited statement from another, with no guarantee of confidentiality. The union filed a grievance over the employee’s termination and in connection therewith requested that Piedmont Gardens provide the names, titles and statements from the three employees. Citing Anheuser-Busch, Piedmont Gardens stated that the law did not require it to provide the union with witness statements collected during its investigation, and therefore, refused to provide copies of the statements.  While the Board held that the new standard would not apply retroactively – even to the pending case – going forward the Board would need to balance the employer’s needs against that of the union when considering employer refusals to provide requested witness statements.

Board members Mark Gaston Pearce, Kent Y. Hirozawa and Lauren McFerran formed the majority. Members Philip A. Miscimarra and Harry I. Johnson III filed separate dissents. Miscimarra wrote that the Anheuser- Busch standard offered protection—from harassment, intimidation and retaliation—to the employees giving the statements and expressed concern that the Detroit Edison standard did not afford the same protections. Similarly, Johnson warned the Detroit Edison standard could make the workplace investigation process “unpredictable and potentially messy.”

Employers may have reason to be concerned about the adoption of the Detroit Edison standard.  Under that standard, it will be more difficult for employers to keep witness statements confidential. Because of this, employees who report misconduct may be reluctant to provide witness statements for fear of disclosure and possible retaliation.  Moreover, there is a possibility that in some workplaces, individuals could spot misconduct but not be willing to report it in the first place given the risk that a witness statement could very well be turned over to the union.

So what’s next in the Anheuser- Busch v. Detroit Edison row? Piedmont Gardens is appealing the NLRB’s decision to the D.C. Circuit, and counsel for Piedmont expects support from many amici. Employers will want to keep an eye on this case given its likely impact on how workplace investigations are conducted.