The National Labor Relations Board (“NLRB” or “Board”), in its June 26, 2015, Decision and Order in American Baptist Homes of the West d/b/a Piedmont Gardens (PDF) has overruled what it described as a longstanding “blanket exemption” allowing employers to protect the confidentiality of witness statements taken during investigations and not provide them to a union in response to an information request. In place of the long standing body of law protecting the confidentiality of witness statements, which was established in recognition of the needs for confidentiality in investigations, the Board has now replaced the rule with a balancing test that weighs the employer’s need to protect confidential information with the union’s stated need for the statements to process a grievance or carry out its other responsibilities.

While the Board majority of Chairman Pearce and Members Hirozawa and McFerran opined that the application of the new test does not necessarily mean that a union will be entitled to receive copies of witness statements taken by an employer in all cases where it requests them, it certainly appears, from reading the majority’s opinion and the  burdens that an employer must meet to establish that a witness statement is entitled to protection from disclosure as confidential, that the burden will be an extreme one and that the Board will look with suspicion when an employer raises the defense.

In 1978, in Anheuser-Busch the Board held that the general duty to furnish information “does not encompass the duty to furnish witness statements themselves.” Thus, for the past 37 years employers could assure employees who gave statements during an investigation that the statements would not be turned over to the union.  However, in overruling Anheuser-Busch, the Board  majority concludes that “the rationale of Anheuser-Busch was flawed” and, therefore, in their view, “national labor policy will be best served by overruling that decision and instead, evaluating the confidentiality of witness statements under the balancing test set forth in Detroit Edison,” a case that involved the standard for determining when and in what circumstances an employer was obligated to produce information that it claimed was confidential, in response to a request for information in collective bargaining.

In crafting a standard for applying Detroit Edison to requests for confidential witness statements, the Board majority noted that the Board “applies a liberal test to determine whether information is relevant: the issue is whether the requested information is of ‘probable’ or ‘potential relevance.’” Such information, to be relevant under this low standard, “need not be dispositive of the issue between the parties but must merely have some bearing on it.” Under Detroit Edison and now Piedmont Gardens, if a party asserts that the requested information is confidential or the statement contains confidential information, “the Board balances the union’s need for the relevant information against any ‘legitimate and substantial confidentiality interests’ established by the employer.”

The challenge for employers in considering whether they may lawfully refuse to provide witness statements or for that matter other information containing what they believe to be confidential information entitled to legal protection as such, is that they Board puts them on notice that there is not a clear and readily identifiable standard for determining what information is entitled to such protection.  As the Board points out in Piermont Gardens, “establishing a legitimate and substantial confidentiality interest requires more than a generalized desire to protect the integrity of employment investigations.”  Rather, only if the employer can establish to the Board’s satisfaction, on a case by case basis that a witness whose statement the union is demanding “needs protection, evidence is in danger of being fabricated, [or] there is a need to prevent a cover up,” will the Board find that the employer may lawfully refuse to provide the union with the witness statements. Even where the employer can meet this substantial burden the Board points out that the employer must then “seek an accommodation that would allow the requester to obtain the information that it needs while protecting the party’s interest in confidentiality.”

One  result of the Board’s about face on the confidentiality of witness statements is likely to be a substantial increase in union requests for copies of investigative statements taken by employers when grievances are filed and processed. Another is a likely increase in the filing and litigation of unfair labor practice charges that focus on whether an employer really requires and is entitled to confidentiality, rather than the merits of the grievance.

A third and perhaps most important consequence of this decision is that many employers and attorneys are likely to reassess when and in what circumstances it is advisable to take witness statements and when, given the increased pressure to produce such statements to unions.