Last year I blogged about the Banner Estrella case, where the NLRB held that workplace investigators may not uniformly ask witnesses to maintain confidentiality, arguing such requests could interfere with “protected concerted activity.”  (See here for the post).  It was big bad news to those of us in the world of workplace investigations, as the NLRB challenged a best practice.  We investigators typically ask witnesses for confidentiality as a matter of course in order to protect the integrity of the investigation.  The NLRB’s decision left us scratching our heads and rethinking our strategies.  Well, the NLRB has done it again.

In American Baptist Homes of the West d/b/a Piedmont Gardens, the Board examined a union request following the termination of an employee caught sleeping on the job.  The union wanted to see all witness statements collected during its investigation into the alleged misconduct.  The employer objected to the request, relying on prior Board precedent.  The NLRB overruled its prior bright line rule protecting witness statements and instead adopted a balancing test.  Under this standard, if the information requested is relevant (an easy standard to meet), the party opposing production based on confidentiality must prove “that a legitimate and substantial confidentiality interest exists, and that it outweighs the requesting party’s need for the information.”

Piedmont Gardens is a pro-union decision that impacts workplace investigations in a union setting.  If confronted with a union request for witness statements following an investigation, play it safe and consult with counsel.