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NLRB witness statement turnover requirement enforced with no comment on Board’s new standard

By Lisa Milam-Perez, J.D.

The D.C. Circuit has affirmed a controversial 3-2 NLRB decision finding that an employer violated the NLRA when it refused to provide a union with a witness statement from a charge nurse who had seen a nurse’s aide sleeping on duty. Leaving aside the larger issue, however, the appeals court did not address the Board’s decision to overrule its blanket exemption protecting witness statements from disclosure. The employer lacked standing to challenge the new rule, the appeals court held, since the Board did not apply the standard in the case at hand (American Baptist Homes of the West dba Piedmont Gardens v. NLRB, June 6, 2017, Garland, M.).

In a 2015 decision, the Board found the employer unlawfully refused to provide the names and job titles of three employees who said they observed a nursing assistant asleep on the job. In addition, the Board found the employer lawfully refused to produce the actual witness statements of two of those employees, finding they were exempt from disclosure under the NLRB’s Anheuser-Busch, Inc. rule. That rule established a blanket exemption excusing employers from disclosing witness statements as part of its general duty to furnish information to a union. These holdings were not challenged.

An assurance of confidentiality? At issue on appeal, though, was the Board’s holding that the employer did violate the Act by refusing to produce the statement of a third witness, a charge nurse. The Board held the charge nurse’s witness statement did not fall within the Anheuser-Busch exemption because it was not provided “under an assurance of confidentiality.” Here, the employer challenged the Board’s factual findings that the charge nurse had not been assured her statement would be kept confidential, but the appeals court found substantial evidence in the record to support the finding below. It also found ample support for the Board’s finding that, in making the witness statement, the charge nurse was not driven by a promise of confidentiality; rather, she was motivated by her own job duties (including reporting employee misconduct to management) and her fear that she would face discipline if she did not report what already had been conveyed to the employer by another nurse.

The employer urged that the Board impermissibly departed from Anheuser-Busch when it held that only statements prompted by an assurance of confidentiality are protected from disclosure. However, this holding was reasonably aligned with subsequent Board cases interpreting Anheuser-Busch, the court said, and the court defers to the Board’s reasonable interpretation of its own precedent. Even the dissenting Board members had construed Board precedent as requiring an assurance of confidentiality in order for a witness statement to fall within the Anheuser-Busch exemption from disclosure, the court observed.

From blanket exclusion to balancing test. The most far-reaching and contentious holding in the divided five-member NLRB opinion below was the decision to overrule the blanket exemption for witness statements provided by Anheuser-Busch. Going forward, the Board said, when an employer argues that it has a confidentiality interest in protecting witness statements from disclosure, the Board will apply the balancing test set forth in Detroit Edison v. NLRB, “as we do in all other cases involving assertions that requested information is confidential.”

The employer sought to challenge the decision to overturn its precedent, even though it only applied to future cases. And while it conceded that, as a rule, a party lacks standing to challenge an adjudicatory ruling that has not been applied to it, the employer contended it had suffered the requisite injury in fact in this case given the language of the Board’s cease-and-desist order.

Order did not confer standing. The Board cease-and-desist order prohibits the employer from refusing to provide requested information to a union “that is relevant and necessary to the processing of a grievance.” Did the broad strokes of this remedial order in effect subject the employer to future unfair labor practice violations for failing to follow the Board’s “prospective” rule on disclosing witness statements? Might it be subject to contempt proceedings as well? That was the employer’s fear, but the court read the provision as applied only to refusing union information requests that violate the Board rule actually applied in the case: the Anheuser-Busch rule, not the Detroit Edison balancing test. The NLRB gave no indication it would subject this employer—alone among employers—to the threat of a contempt order for failing to adhere to the new standard.

To the contrary, the Board expressly stated that it would apply the new standard “prospectively only,” cognizant that it had departed from longstanding Board precedent, and that the employer here had expressly relied on extant Board law when it refused to turn over the witness statements to the union. Consequently, the employer did not have standing to challenge the newly announced standard, and the appeals court dismissed the employer’s petition to review that portion of the Board’s decision.

Just to be clear. Of course, it was impossible to know for certain that the Board would construe its own language as the court had here, it noted. However, any attempt to treat a future violation by the employer under the new standard as having contravened the cease-and-desist order would raise due process concerns, and the court said it would not uphold any such order. For the sake of clarity, the court stressed it would enforce the cease-and-desist order in this case only to the extent it covers witness statement disclosure requirements that were in effect at the time: i.e., as set forth in Anheuser-Busch.