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March 28, 2014

Internal Investigations of Misconduct and Witnesses’ Statements

Obtaining Witnesses’ Statements

Employers conducting internal investigations of possible workplace misconduct frequently confront resistance from key employee witnesses of the events being investigated. Many witnesses feel that they do not want to “get involved,” particularly if there is the possibility that the information they provide could fall into the hands of others. In their view, this risk could expose them to unwanted confrontations, harassment and even threats and other coercive acts.

Witnesses’ resistance to cooperate with their employers’ investigations is even more frequent when the employers request written statements describing the witnesses’ observations and knowledge of the background in which the events, subject of the investigation, took place. In the unionized workplace, employee witnesses express concern that the information that they may provide, which could result in disciplinary action against a union represented employee, may fall into the union’s hands. Understandably, they fear that the union leadership would disfavor the revelation of facts and observations that may result in disciplinary action against a union member or represented employee. The witnesses’ cooperation in the investigation may, therefore, expose them to a hostile work environment from the union leaders and supporters.

However, in order to obtain witnesses’ cooperation and written statements during internal investigations, employers are frequently asked to provide assurances that the statements will be kept confidential, at least until there is a hearing regarding disciplinary action taken by the employer, if any, and the witness is subpoenaed to testify.

The Obligation to Furnish Information to the Union

The law is well-established that the unionized employer has the obligation to furnish the union, upon request, with information “relevant and necessary to the proper performance of the union’s duties as a bargaining representative.”[1] Under National Labor Relations Board (NLRB or Board) law, so long as there is a probability that the requested information is relevant and will be used by the union in fulfilling its statutory duties, it must be provided.[2]

Clearly, information obtained by the employer during an internal investigation that leads to disciplinary action is relevant and necessary to the union’s determination whether to take a grievance to arbitration. In such circumstances, the union needs only show that the requested information could lead to the discovery of evidence that could assist the union in making its determination. Bohemia, supra.

Witness Statements – The Anheuser-Busch Exception

Until recently, NLRB law was settled that witnesses’ written statements, obtained by the employer during internal investigations of workplace misconduct, constituted an exception to the general obligation to provide information to the union.

In 1978, the NLRB held that “witnesses’ statements . . . are fundamentally different from the types of information contemplated in Acme.” The Board formulated the Anheuser-Busch exception recognizing two critical facts in that case: (1) the employer had provided the union with a synopsis of the information obtained during the investigation, without revealing the identity of the employee witnesses and (2) the employer did not in any way interfere with or impede the union’s own investigation of the events that led to the discipline subject of the grievance.

In grievance/arbitration proceedings, the Anheuser-Busch exception[3] made it possible for employers to give assurances of confidentiality to employee witnesses regarding their written statements, at least until the time of the arbitration hearing. Specifically, the Anheuser-Busch Board recognized that, in the absence of some assurance of confidentiality, employee witnesses might decline to cooperate with internal investigations because of reasonable concerns that the union and/or co-employees would become hostile to them for providing information to the employer that led to disciplinary action against co-employees.

The Board’s Anheuser-Busch approach was realistic. Importantly, it was consistent with the requirements imposed on employers by the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance Regarding Anti-Harassment Policies. Said Guidance states: “An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible.”[4]

Change in the Law – Piedmont Gardens

On December 15, 2012, the Board reversed Anheuser-Busch.[5] In Piedmont Gardens, the Board, in essence, held that, in the future, it would conduct a “balancing test” on a case-by-case basis, whenever the employer declined to provide the union with copies of witnesses’ statements on the basis of confidentiality. After Piedmont Gardens, in each case, the employer bears the burden of establishing the need for confidentiality and, in all cases, it has the obligation to seek an accommodation which would satisfy the union.

If efforts to accommodate a union’s request fail, the employer must prove a legitimate and substantial interest in keeping the statements confidential which outweighs the union’s need for the statements. Such legitimate and substantial interest must be based on facts that would lead to a reasonable expectation that, if the statements were provided, the witnesses would be exposed to harassment or coercion. Mere speculation would not suffice.

Practices Employers Should Consider to Protect Witness Statements

Under Piedmont Gardens employers can no longer promise confidentiality of the witnesses’ statements with any certainty. The dissent expressed it best, stating that Piedmont Gardens replaces a well-established rule of law with a case-by-case guessing game.

In the light of Piedmont Gardens and faced with the continuing necessity to conduct internal investigations of workplace misconduct, employers should consider various practices designed to protect the confidentiality of statements.

One approach is to negotiate language, to be included in union agreements, providing for the confidentiality of the witnesses’ statements obtained during internal investigations. Another practice is to specify the assurances of confidentiality and, if appropriate, state that the witnesses provide the information on the condition that their identity be kept confidential until they are called to testify at a hearing.

In addition, in today’s world, internal investigations of workplace misconduct should be conducted with the recognition that legal advice will be necessary. Accordingly, the investigating team should be instructed that the witnesses’ statements obtained are regarded as privileged materials. As such, guidelines, such as those in Upjohn[6] and controlling State law should be followed, with the objective of establishing a claim that that attorney-client privilege protects the statements from disclosure.

Conclusion

In the real world, employee/witnesses often decline to cooperate with internal investigations which could lead to discipline against other employees. In many cases, they realistically believe that, if their identity becomes known to other employees and/or to the union, they may face hostility and even coercive acts. In grievance/arbitration proceedings, while, under current NLRB law, employers can no longer give assurances of confidentiality, they should consider the adoption of practices designed to protect the confidentiality of witness statements against premature disclosure to the union and others.

Jerry Morales is Of Counsel in the Phoenix office of Snell & Wilmer. His practice is concentrated in labor, employment and construction law. 

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Notes

[1] NLRB v. Acme Industries Co., 385 U.S. 432 (1967). [back]

[2] Bohemia, Inc., 272 NLRB 1128 (1984). [back]

[3] Anheuser-Busch, Inc., 237 NLRB 982 (1978). [back]

[4] EEOC, Enforcement Guidance (1999). www.eeoc.gov/laws/types/harassment.cfm. [back]

[5] Piedmont Gardens, 359 NLRB No. 46 (2012). [back]

[6] Upjohn Co. v. United States, 449 U.S. 383 (1991). [back]

 

 

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