January 22, 2013
By Larry Cary

In a recent case, the National Labor Relations Board has ruled that employer gathered confidential witness statements used to investigate worker misconduct must be shared with the union during investigation of a disciplinary grievance unless the employer can show it has an overriding confidentiality interest.  This reverses the Labor Board’s 34 year old rule allowing employers to refuse to produce such statements to the union.

The new rule, announced in December of 2012, in a case called American Baptist Homes of the West d/b/a Piedmont Gardens, strengthens a union’s ability to understand the employer’s evidence at the grievance stage and should lead to less futile arbitrations.  Under the old rule a union had to waste its money on a futile arbitration in order to discover how strong a case the employer had against the employee.  The new rule should also lead to better settlement of grievances because the union will know the full extent of the evidence showing whether an employee has engaged in misconduct.

The nursing home in Piedmont Gardens had three written statements from employees (two supervisors and one bargaining unit employee) describing what they knew about a union employee allegedly observed sleeping on the job.  The nursing home refused to give copies of these statements to the union which had asked for them in order to evaluate the member’s grievance of his discharge.

Employers are generally obligated under federal labor law to provide information needed by the union to investigate whether a grievance under the contract has merit, which in this case focused on whether there was just cause to terminate the union employee.  Piedmont Gardens refused to make the statements available to the union because it had a right to do so under Anheuser-Bush, a case decided in 1978 exempting confidential witness statements from disclosure.

Under the new rule, an employer refusing to disclose a confidential witness statement has the burden of showing that it’s legitimate and substantial confidentially interest trumps the union’s need to know.  The employer cannot meet it’s burden by showing that it promised confidentiality to the employee or that it has a general policy of treating such statements as confidential.  There must be evidence that the information in the statement is sensitive or confidential based on the specific facts in each case.  On the other hand, a history of intimidation against employees who provide statements to the employer or past or current efforts by the grievant to intimidate others would likely satisfy the employer’s burden.

In the event that an employer’s confidential interest outweighs the union’s right to know, under the new rule the employer still has a duty to seek an accommodation with the union, meaning it must bargain with the union over its refusal to provide a copy of the statement.  In other words, a union’s promise to keep the statement confidential from others might meet the employer’s specific needs and gain the union access to the content of the document.

It should also be noted that the new balancing test for release of confidential witness statements does not even come into play if the statement is provided to the employer by the witness simply as part of the supervisor’s job responsibilities.  This means that any records generated by the supervisor in the normal course of business without the employer promising confidentiality to the supervisor must always be turned over to the union upon request.

When investigating a disciplinary grievance, a union should request the names and titles of all witnesses to the alleged misconduct as well as copies of all records, including so-called confidential witness statements, relevant to investigating the incident and the grievance.  The union’s request should be in writing.  Failing to make this request could become evidence in support of an allegation that the union breached its duty of fair representation to properly investigate the grievance.  On the other hand, having written statements from multiple disinterested witnesses showing that the member did commit serious misconduct could well insulate the union from a complaint that it failed to meet its duty of fair representation when deciding not to take a case to arbitration. Needless to say, if the employer outright refuses to share the confidential witness statements, a charge may be filed by the union at the Labor Board contending that the employer is violating federal law.
Larry Cary is a partner at the New York law firm of Cary Kane LLP.  He has represented unions for 30 years.


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