The National Labor Relations Board (“NLRB”) held that employers must disclose to unions confidential witness statements gathered during workplace investigations, unless “legitimate and substantial confidentiality interests” outweigh a union’s need for the information.

The decision in American Baptist Homes of the West, d/b/a Piedmont Gardens reverses long standing precedent that the duty to provide information to unions regarding the processing of grievances does not encompass a duty to furnish witness statements themselves, as those are “fundamentally different.”

Now in order to be able to withhold the witness statements an employer will have to establish “legitimate and substantial confidentiality interests.”  The NLRB cautioned that this standard will not be met by showing a generalized desire to protect the integrity of employment investigations. Rather, an employer will have to establish that there is a need for witness protection, danger of evidence being destroyed, testimony being fabricated, or facts being covered up before the employer will be allowed to withhold witness statements. The NLRB held that an employer will have to “seek an accommodation that would allow the requester to obtain information it needs while protecting the party’s interest in confidentiality.”

The decision may be found here.

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