NLRB Expands Transparency in Workplace Investigations

The National Labor Relations Board (NLRB) has ruled that employers can no longer automatically withhold witness statements from unionized employees who are investigated for workplace misconduct.

In Piedmont Gardens, 362 NLRB No. 139, the NLRB ruled that employers must undertake a case-by-case balancing of the union’s need for the information against “any legitimate and substantial confidentiality interests established by the employer.” In the past, employers automatically sealed witness statements, ostensibly to protect witnesses from intimidation, harassment and retaliation.  However, there was no blanket exemption for the names of witnesses. The result of the  NLRB ruling is that witness statements will be treated like the names of witnesses.

According to the NLRB:  “There is no basis for concluding that all witness statements, no matter the circumstances, warrant exemption from disclosure… if the requested information is relevant, the party asserting the confidentiality defense has the burden of proving that it has a legitimate and substantial confidentiality interest in the information, and that it outweighs the requesting party’s need for the information.”

While the board’s ruling is limited to unionized workplaces, it could have broader impact as employers adopt uniform policies to address workplace discrimination, harassment, and retaliation. 

The NLRB ruled that establishing a legitimate and substantial confidentiality interest with respect to witness statements “requires more than a generalized desire to protect the integrity of investigations.”  Employers can show a need for confidentiality by demonstrating such factors as:

  • A witness needs protection;
  • Evidence is in danger of being destroyed;
  • Testimony is in danger of being fabricated; or
  • There is a need to prevent a cover up

If the NLRB decides the confidentiality interest outweighs the union’s need, the employer must  then seek accommodation with the union that would allow it to obtain the information while protecting the employer’s confidentiality  interest (i.e. providing a summary of the statement).

The ruling came in an Oakland, California case where a unionized nursing assistant was found sleeping while on duty. A nurse provided a witness statement to the human resources director after being assured that her statement would be kept confidential. A second nurse provided a witness statement who did not receive any assurance of confidentiality. The nursing assistant was subsequently terminated.  The union filed a grievance and demanded production of the witness statements, which the employer refused to release, citing witness confidentiality. The NLRB ordered the release of  the witness statement filed by the nurse who was not provided any prior assurance of confidentiality.  In addition, the NLRB ordered the disclosure of the witness names, as they were already listed on a public work schedule.

The NLRB majority noted the National Labor Relations Act § 8(a)(5) imposes on the employer a “general obligation” to furnish a union with relevant information necessary to the union’s proper performance of its duties as a the collective bargaining representative of employees, including information that the union needs to determine whether to take a grievance to arbitration.

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