United States: NLRB Limits Confidentiality In Workplace Investigations

Last Updated: July 10 2015
Article by Joseph C. Ragaglia and Jonathan C. Fritts

In two decisions issued on June 26, the National Labor Relations Board overruled its longstanding precedent holding that employers may withhold witness statements from requesting unions and further held that general policies requiring employee confidentiality in all company investigations are unlawful.

Background

For more than 35 years (since Anheuser-Busch, Inc., 237 NLRB 982 (1978)) the National Labor Relations Board (NLRB) has held that the general duty of an employer to furnish information to a requesting union does not encompass the duty to produce confidential witness statements. In Anheuser-Busch, the NLRB held that witness statements are fundamentally different from other types of information sought by a union and that their release carried a special risk of potential witness intimidation, as well as the possibility that witnesses would be reluctant to give statements without assurances that they would be kept confidential.

For all other information, including requests for the names of witnesses, the NLRB has historically applied the balancing test enunciated in Detroit Edison v. NLRB, 440 U.S. 301 (1979) to determine whether the information sought must be provided notwithstanding an employer's confidentiality concerns.

The Piedmont Gardens Decision

In American Baptist Homes of the West d/b/a Piedmont Gardens, 362 NLRB No. 139 (Jun. 26, 2015), the NLRB rejected its longstanding precedent and held that an employer's ability to withhold confidential witness statements will depend on the Detroit Edison balancing test.

Under Detroit Edison (assuming the requested information is relevant), the initial burden is on the employer to establish "a legitimate and substantial confidentiality interest" with respect to the witness statements by showing that the "witness[es] need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is need to prevent a cover up." If the employer is able to make such a showing, "the Board then weighs the [employer's] interest in confidentiality against the [union's] need for the information." The employer may not flatly refuse to provide information that is shown to be confidential, but must seek an accommodation from the union "that would allow the [union] to obtain the information it needs while protecting the [employer's] interest in confidentiality." 

The NLRB's decision in Piedmont Gardens will be applied prospectively. In applying the Detroit Edison analysis to the names and job titles of witnesses, the NLRB in Piedmont Gardens made it clear that an employer's burden cannot be established by a general interest in maintaining the confidentiality of company investigations or avoiding harassment and intimidation of employees based on their statements, or by demonstrating that a union could easily obtain the requested information from another source. In Piedmont Gardens, the employer made each of these arguments with respect to the confidentiality of the names and job titles of witnesses, and each argument was rejected by the NLRB. The NLRB reasoned that (i) an employer's policy of ensuring the confidentiality of witnesses was, by itself, insufficient to establish its confidentiality interest, (ii) there must be a factual basis to support a concern about witness harassment and intimidation, and (iii) the availability of the requested information from other sources did not excuse the employer's obligation to provide such information. 

The NLRB noted that its decision in Piedmont Gardens does not impact the work product doctrine, which may still be raised to object to a union's request for witness statements where such witness statements were obtained in anticipation of litigation or for trial.

The Banner Health Decision

On the same day that the NLRB issued Piedmont Gardens, it issued a second decision impacting an employer's ability to maintain confidentiality in investigations—Banner Health System d/b/a Banner Estrella Medical Center, 362 NLRB No. 137 (Jun. 26, 2015). In Banner Health, the NLRB reconsidered and confirmed an earlier decision of the improperly constituted NLRB in the same case reported at 358 NLRB No. 93.

The recently issued Banner Health decision holds that a general employer policy requiring confidentiality in investigations will be found to unlawfully interfere with employees' Section 7 rights to discuss discipline or ongoing disciplinary investigations involving themselves or their coworkers. An employer may require confidentiality in an ongoing investigation on a case-by-case basis where the employer is able to demonstrate that "corruption" of an investigation would "likely occur without confidentiality." Potential corruption includes cases in which (1) witnesses need protection, (2) evidence is in danger of being destroyed, (3) testimony is in danger of being fabricated, or (4) there is a need to prevent a cover-up.

Practical Implications

Employers that have union-represented employees will need to decide how workplace investigations will be conducted in light of Piedmont Gardens. The NLRB's decision in Banner Health will affect the ability of all employers covered by the National Labor Relations Act—whether their employees are represented by a union or not—to maintain confidentiality in workplace investigations. The need for confidentiality in an investigation must be determined on a case-by-case basis.

In an investigation involving union-represented employees, witnesses can no longer be assured that their statements will not be disclosed to the union. This may, of course, diminish employees' willingness to disclose information during an investigation. Employers can still inform employees that their witness statements will be treated as confidential on a case-by-case basis, consistent with Banner Health, but the designation of a witness statement as "confidential" will not necessarily prevent its disclosure to the union.  

When faced with a request from a union for witness statements that are relevant to a grievance or an issue of employee discipline, the confidentiality of witnesses' statements must be balanced against a union's need for the information on a case-by-case basis. Possible accommodations could include redacting the witness names from statements or producing a list of witness names with a summary of the information obtained without attributing the information to any particular witness. Whether a particular accommodation is appropriate will depend on the facts and circumstances of each given case and, ultimately, the proposed accommodation will be subject to good faith negotiation with the union.

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions