A recent ruling from the National Labor Relations Board (NLRB) means employers are no longer automatically exempted when unions ask them to turn over witness statements related to employee discipline.
Now, the employer’s confidentiality interest must be balanced with the union’s need for information. The American Baptist Homes of the West d/b/a Piedmont Gardens case overruled the Board’s 1978 decision in Anheuser-Busch, Inc., which established a categorical exemption for witness statements in such cases.
In the Piedmont case, the NLRB’s acting general counsel and the charging party argued that the bright-line rule established in 1978 was “inappropriate.” The Board agreed, finding it should instead apply a balancing test articulated by the U.S. Supreme Court’s decision in Detroit Edison Co. v. NLRB, which was decided in 1979.
The Piedmont case involved a continuing care facility in Oakland, California. Two witnesses alleged that a certified nursing assistant (CNA) was asleep on the job, resulting in the CNA’s termination. The union representing employees at the facility—Service Employees International Union (SEIU), United Healthcare Workers West—asked for information used in the termination, including the witnesses’ statements. The employer refused to turn over those statements.
In its decision, the Board said that the National Labor Relations Act (NLRA) imposes on employers a “general obligation” to furnish unions with relevant information necessary to perform their duties. Applying the Detroit Edison case, the NLRB ruled that it must balance the union’s need for information against “any legitimate and substantial confidentiality interests established by the employer.”
The Board decided not to apply the new rule retroactively, so the Piedmont decision was decided under the Anheuser-Busch rule. Other pending cases also will be decided under the Anheuser-Busch rule.