Overturning a 37-year-old precedent, the National Labor Relations Board has decided that witness statements obtained by an employer during an investigation of employee misconduct and requested by a union representative will no longer enjoy special protection from disclosure. American Baptist Homes of the West d/b/a Piedmont Gardens, 362 NLRB No. 139 (June 26, 2015). The NLRB held in 1978 that the duty of an employer, generally, to furnish information to a union on matters affecting unit employees does not include furnishing witness statements produced during workplace misconduct investigations. Instead, the Board will now apply a “balancing test” to determine if witness statements should be furnished. The Board will consider whether the information withheld is sensitive or confidential based on the specific facts in each case; the party asserting the confidentiality defense may not simply refuse to furnish the requested information, but must raise its confidentiality concerns in a timely manner and seek an accommodation from the other party. Since the Piedmont Gardens decision is a departure from longstanding precedent relied on by employers, the Board decided that the new standard would only apply prospectively.
United States