In a potentially far-reaching decision, the National Labor Relations Board (NLRB) has ruled an employer must turn over confidential employee witness statements to a union as part of a grievance procedure.
The statements were part of a workplace investigation that resulted in the firing of an employee at the Piedmont Gardens Nursing Home in Oakland. The nursing home obtained some statements with a promise of confidentiality. Other employees, however, provided statements without requesting confidentiality. Piedmont Gardens used the statements to justify the man’s firing.
He complained to the United Healthcare Workers-West, the union representing Piedmont Gardens employees. It requested “all statements” taken during the investigation.” The nursing home refused on the grounds that doing so would “breach witness confidentiality.”
The union complained to the NLRB, which ruled that witness statements taken during workplace investigation may be turned over under certain conditions. The case is Piedmont Gardens (359 NLRB No. 46, 2012).
A previous NLRB ruling gave employers a safe harbor from providing statements in order to protect confidentiality.
The NLRB set out a two-part test for requiring release of confidential witness statements:
- The information requested must be relevant to the grievance at hand.
- The employer asserting the confidentiality argument must turn over witness statements unless it can prove that a “legitimate and substantial confidentiality interest exists and that it outweighs” the union’s need for the information.
The NLRB recommends that parties attempt to work out accommodations that allow the union to perform its function while limiting breaches of confidentiality.
Advice: Faced with similar circumstances, consult your attorney. You don’t want to mislead witnesses about the degree to which you can guarantee confidentiality.
Note: This and many other recent NLRB rulings may be overturned if the U.S. Supreme Court upholds a recent federal appeals court decision that the NLRB has not been properly constituted since January 2012.