On the heels of its December 12 decision overturning 50-year-old Board precedent in WKYC-TV, the NLRB reversed a 36-year-old Board ruling which protected confidential witness statements during workplace investigations from disclosure to the labor organization representing the employee or employees involved in the investigation. Prior to the Board’s December 14 decision in Am. Baptist Homes of W. d/b/a/ Piedmont Gardens , it was well-settled under Anheuser-Busch Inc., 237 N.L.R.B. 982 (1978), that the law exempted witness statements made to employers by employees with assurances of confidentiality from the requirement to provide the union involved with copies of the statements, even though such statements were arguably relevant to the Union’s representation of bargaining unit employees.

In overturning the bright line rule announced in Anheuser-Busch, the Board found that witness statements are “fundamentally the same” as other “confidential” information an employer may be required to provide to a bargaining agent. Therefore these statements are subject to the same balancing test laid out by the Board in Detroit Edison Co. v. N.L.R.B., 440 U.S. 301 (1979). The Board summarized the balancing test as follows:


Section 8(a)(5) of the Act imposes on an employer the “general obligation” to furnish a union with relevant information necessary to the union’s proper performance of its duties as the collective-bargaining representative of its employees, including information that the union needs to determine whether to take a grievance to arbitration absent settlement. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). . . .

Establishing relevance, however, does not end the inquiry. If a party asserts that requested information is confidential, the Board balances the union’s need for the relevant information against any legitimate and substantial confidentiality interests established by the employer. See Detroit Edison, 440 U.S. at 318–320. . . . Further, “a party refusing to supply information on confidentiality grounds has a duty to seek an accommodation.” Pennsylvania Power, 301 NLRB at 1105.

Piedmont Gardens at p. 2 of sl. op. As is often the case when the Board changes such a longstanding precedent, the application of the Detroit Edison balancing test only applies prospectively. Employers will have to determine whether they possess a “legitimate and substantial confidentiality interest” which outweighs the union’s need for the relevant information. If such an interest exists, the employer must then seek an accommodation with the union through bargaining before refusing to furnish the information outright. This decision will have a major impact on employers in the day-to-day processing of grievances and arbitrations under collectively bargained agreements.