Articles

Employers who seek to keep written statements of employee-witnesses who observed work misconduct that leads to a termination will have an uphill battle convincing the National Labor Relations Board (NLRB) that this information should be kept confidential.  In American Baptist Homes of the West d/b/a Piedmont Gardens, the employer sought to keep confidential the names, job titles, and witness statements of three employee-witnesses who observed an employee sleeping on duty.  The NLRB overruled the bright-line test allowing witness statements to be kept confidential, and adopted a new balancing test.  Of course, the invalidation of the NLRB member appointments will overturn this decision, but it is likely the same decision will result when a properly constituted NLRB is finally appointed.

The decision held that where a party requests witness statements and the opposing party asserts a claim of confidentiality, those witness statements should be subjected to the balancing test set forth in Detroit Edison Co. v. NLRB.  The test requires that if the information requested is determined to be relevant, the party asserting the confidentiality defense has the burden of proving that a legitimate and substantial confidentiality interest exists and it outweighs the requesting party’s need for the information.  This inquiry is very fact-specific.

This case falls squarely within the current NLRB’s aggressive agenda to narrow the scope of tools that employers can use to protect the integrity and quality of internal investigations.  Employers can no longer offer assurance of confidentiality to employees who participate in an internal investigation.  Employees may not be as willing to come forward with statements where an employer cannot assure that the statement will be confidential.  The fear of harassment and threats at work may take control.  This is an understandable but regrettable result.

The practical impact of this decision is that going forward, unions will likely make requests for witness statements part of their standard information requests for arbitrations and other investigations related to grievances and unfair labor practices.  In turn, employers must face the reality that any promises of confidentiality can no longer be assured.  Worse yet, any promises of confidentiality that are broken may result in a lack of trust between your cooperative employee and the supervisor who mislead him or her.  As a result, employers should think long and hard about promising confidentiality in such cases.

Brody and Associates regularly advises its clients on all labor management issues and provides various related training programs.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.