DISCIPLINE WITH WITNESS STATEMENT AND UNION EMPLOYEES

FROM:  U.S. NATIONAL LABOR RELATIONS BOARD

December 28, 2012
The National Labor Relations Board has ruled that, in considering whether an employer is obligated to provide witness statements to a union representing an employee concerning discipline, the Board must balance the confidentiality interests of the employer against the union’s need for the information.

The decision in American Baptist Homes of the West d/b/a Piedmont Gardens overrules a 1978 Board decision, Anheuser-Busch, Inc., 237 NLRB 982, which established a categorical exemption for witness statements in such cases. In Piedmont, The Acting General Counsel and the charging party argued that the bright-line rule established in 1978 was "inappropriate", and the Board agreed, finding it should instead apply a balancing test articulated by the Supreme Court in 1979, in Detroit Edison Co. v NLRB, 440 U.S. 301.

The case involves a continuing care facility in Oakland, California, where statements by two witnesses alleging that a certified nursing assistant was asleep on the job resulted in that person’s termination. The union representing employees at the facility, SEIU, United Healthcare Workers-West, asked for information used in the termination, including witness statements. The employer refused.

In its decision, the Board noted that the National Labor Relations Act imposes on an employer a "general obligation" to furnish a union with relevant information necessary to perform its duties. However, under Detroit Edison, the Board must balance that need against "any legitimate and substantial confidentiality interests established by the employer." The Board discussed that balance in the decision. Also, it decided not to apply the rule retroactively; therefore, Piedmont and other pending cases are being decided under Anheuser-Busch.

The Board asked for briefing on a similar question in a decision in Hawaii Tribune Herald issued March 2011. In its Dec. 14, 2012 supplemental decision, the Board found it unnecessary to address the issue of overruling Anheuser-Busch because it found that the witness statement in the case was not covered by that decision.