NLRB Can Change Witness Disclosure Rule While Enforcing Prior Rule Against Company

By Jeffrey Rhodes Jul 19, 2017

An employer cannot challenge a National Labor Relations Board (NLRB) decision to expand instances in which the employer must provide witness statements to a union when the NLRB enforced the prior rule against the employer, the D.C. Circuit U.S. Court of Appeals ruled.

American Baptist Homes of the West, d/b/a Piedmont Gardens, fired a nursing assistant after an internal investigation into allegations that he was sleeping on the job. The assistant's union requested the names, titles and statements of witnesses involved in the investigation. Piedmont Gardens faced an unfair labor practice charge after refusing to provide the requested information.

In deciding the charge, the NLRB considered the employer's duty to bargain with the employees' union under the National Labor Relations Act (NLRA). This duty includes the obligation to provide information that is needed by the union for the proper performance of its duties. The board thus applied the balancing test it created in Detroit Edison Co. v. NLRB.

The Detroit Edison test balances the union's need for the information against the employer's "legitimate and substantial" confidentiality interests. However, the board has recognized an exception to the Detroit Edison test for witness statements. In Anheuser-Busch Inc., the NLRB held that an employer's general obligation to honor requests for information from a union does not encompass the duty to furnish witness statements themselves.

The board concluded that Piedmont Gardens violated the NLRA by refusing to provide the names and titles of three individuals who said they witnessed the nursing assistant sleeping on duty.

[SHRM members-only HR Q&A: What is the function of the NLRA?]

Applying the Anheuser-Busch rule to the witness statements, however, the NLRB concluded that Piedmont Gardens' refusal to produce the statements of two of the witnesses did not violate the act because the statements were exempt from disclosure under that rule.

Regarding the statements of a third witness, charge nurse Lynda Hutton, the board found that the company violated the act because they were not witness statements within the meaning of Anheuser-Busch because they were not provided under an assurance of confidentiality. Rather, Hutton gave the statements because it was one of her job duties to do so.

Although the board applied Anheuser-Busch to resolve the charge, it announced that prospectively it was overruling Anheuser-Busch's blanket exemption for witness statements. The NLRB decided that, in future cases, it would remove the Anheuser-Busch exception and analyze witness statements according to the balancing test set forth in Detroit Edison, balancing the union's need for the information against the employer's confidentiality interests.

Piedmont Gardens petitioned to the U.S. Circuit Court of Appeals for the D.C. Circuit for review, and the NLRB filed a cross-application for enforcement of its order. On appeal, Piedmont Gardens disputed the board's finding that Hutton was never given any assurance that her statements would be kept confidential. Piedmont Gardens further asserted that the NLRB impermissibly departed from Anheuser-Busch by holding that the protection of that decision extends only to statements prompted by an assurance of confidentiality. Finally, Piedmont Gardens challenged the board's decision to overrule Anheuser-Busch. Piedmont Gardens argued that the NLRB's cease-and-desist order could render it subject to future unfair labor practice proceedings and contempt proceedings if it fails to follow the new rule.

Rejecting these arguments, the D.C. Circuit found that there was substantial evidence in the record that Hutton's statements were motivated by her job duties and fear of punishment if she failed to report what another nurse had already reported, rather than by any promise of confidentiality. It further found that the board reasonably interpreted its cases as holding that an assurance of confidentiality must motivate the witness to bring the statement within the protection of Anheuser-Busch.

The court thus found that the board was only applying its new rule prospectively. There was nothing to suggest that it intended to subject Piedmont Gardens to the possibility of contempt if its future conduct were unlawful only under the Detroit Edison balancing test. However, the court limited its enforcement of the NLRB's order against Piedmont Gardens to only impose the witness-statement disclosure requirements of the Anheuser-Busch case. The court thus denied Piedmont Gardens' petition for review in part and dismissed it in part, and granted the NLRB's cross-application for enforcement of its order as clarified.

American Baptist Homes of the West, d/b/a/ Piedmont Gardens v. National Labor Relations Board, D.C. Cir., No. 15-1445 (June 6, 2017).

Professional Pointer: Under prior NLRB precedent, an employer could refuse to provide a union with copies of witness statements if they were obtained under a promise of confidentiality. The Obama-era NLRB recently changed the rule to apply a balancing test to weigh the union's need for the information against the employer's confidentiality interests. Although the change has not been overruled, it remains to be seen whether the Trump-era NLRB will follow the new precedent.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

Was this article useful? SHRM offers thousands of tools, templates and other exclusive member benefits, including compliance updates, sample policies, HR expert advice, education discounts, a growing online member community and much more. Join/Renew Now and let SHRM help you work smarter.


Job Finder

Find an HR Job Near You
Post a Job

Apply by October 19

Get recognized as an HR expert. Earn your SHRM-CP and SHRM-SCP certification, and set yourself apart.

Apply Now


Find the Right Vendor for Your HR Needs

SHRM’s HR Vendor Directory contains over 10,000 companies

Search & Connect