IV. Suggested Strategies to Prevent Disclosure

Employers will now have to devise response to union requests for witness statements, particularly when seeking to resist the requests. While there will inevitably be some uncertainty concerning the application of the Detroit Edison balancing test to the witness statement context, its application with respect to witness names should provide guidance. Employers concerned the release of witness statements may compromise confidentiality interests can take several steps to avoid disclosure.

First, employers should give qualified assurances of confidentiality to witnesses before they provide statements. As evidenced in Piedmont Gardens, even under the bright-line test statements given without such an assurance must be disclosed.^xxxiv Therefore it would be difficult to argue there is a legitimate concern about confidentiality under the balancing test if there was no expectation of confidentiality to begin with. In the interest of candor the employer should qualify its assurance of confidentiality so the witness is aware their statement may be disclosed if the Board orders it. Assuming the employer anticipates resisting disclosure, it should inform the witness it will do so.

When presented with a request the employer should inform the union of its good faith concerns about confidentiality, threats, or coercion promptly. In addition, the employer should offer to accommodate the union by providing a summary of the witness’s statement. The offer should include a summary of the substance of the statements, while withholding the actual witness statements and witnesses’ identity.[ii] The accommodation should also include a requirement that the union not distribute the summaries, limiting their disclosure as much as feasible.

Employers should also document instances in which it has been unable to obtain witness statements because of its inability to give an unqualified assurance of confidentiality. If potential witnesses are refusing to come forward because of a fear of disclosure the employer will have a valid argument it should be allowed to keep statements confidential because the NLRB is concerned with this issue.^xxxv In addition, situations which indicate the witness may be subject to intimidation or harassment should be documented and communicated to the union. Such circumstances may include threats of reprisal by the grievant or other employees for aiding in the investigation. If there are threats of reprisal the company should be allowed to keep the witness statement confidential.

In the course of overturning the Anheuser-Busch test the Board cited investigations of criminal activity, particularly drug use, as circumstances in which employer could successfully resist a union’s attempt to discover witness names.^xxxvii It cited theses case to show the balancing test effectively protects confidentiality concerns.^xxxviii While it cannot be guaranteed, it is likely similar situations will give rise to “legitimate and substantial” confidentiality concerns with respect to requests for witness statements as well. The Board took into account that the workplace in Pennsylvania Power Co., a nuclear power plant, was inherently dangerous and thus the need for a drug-free environment was both obvious and necessary^.xxxix It also considered the “national policy” in favor of curbing the “drug epidemic”.^xi Because of the circumstances and safety issues involved, the employer’s confidentiality interest garnered “unusually great weight”.^xli The Board agreed with the employer that if witness names were revealed future witnesses may be reluctant to come forward and the witnesses may be subject to harassment.^xlii

However, it refused to give “unusually great weight” to an employer’s decision to withhold a witness’s name when allegations of petty theft gave rise to the investigation.^xlii The Board found there was no apparent threat to employee or public safety in that situation.^xliv While the Board presumed the employer’s concerns were legitimate it required the employer to provide accommodation to the union and explore “all reasonable alternatives to direct disclosure of the informant’s names.”^xiv

In his dissent Member Hayes noted the possibility an employer could be put in between the preverbal rock and a hard place because of conflicting policies.^xlvi He cited the EEOC policy of maintaining confidentiality during harassment investigations as an example of a possible conflict should the Board order the release of statements regarding the allegations^.xlvii Should this situation arise an employer should cite the “national policy” of confidentiality in such circumstances, among other concerns in resisting disclosure. Based upon the Board’s previous references to “national policy” as a factor in permitting employers to avoid disclosure this argument should be persuasive, and thus the employer should be able to avoid disclosure on these grounds.

V. Conclusion

While the Piedmont Gardens decision will result in increased uncertainty regarding whether witness statements must be disclosed employers should be familiar with Detroit Edison balancing test, and thus be prepared to respond to requests for statements. Should the employer elect to resist disclosure of the statement is should offer to accommodate the union and cite the specific confidentiality concerns justifying its refusal. In some circumstances, including criminal activity endangering employees and the public, the employer’s decision to resist will be given “unusually great weight”. Other situations involving “national policy” concerns, such as investigations of harassment, should receive similar treatment, thus protecting witness statements from disclosure.