April 14, 2014 Articles

Obtaining Witnesses' Statements in Internal Investigations of Misconduct

What to do when an employee witness does not want to get involved.

By Gerald Morales – April 14, 2014

Employers conducting internal investigations of possible workplace misconduct frequently confront resistance from key employee witnesses. Many witnesses do not want to “get involved,” because they feel that participating in an investigation could expose them to unwanted confrontations, harassment, and even threats and other coercive acts.

Witnesses’ resistance is even more frequent when the employers request written statements describing the witnesses’ observations and knowledge of the background in which relevant events took place. In the unionized workplace, employees fear that these statements could fall into the union’s hands and 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, employers are frequently asked to ensure 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.” NLRB v. Acme Industries Co., 385 U.S. 432 (1967). Under National Labor Relations Board (NLRB) law, as 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. Bohemia, Inc., 272 NLRB 1128 (1984).

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 need only show that the requested information could lead to the discovery of evidence that could assist the union in making its determination.

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.” Anheuser-Busch, Inc., 237 NLRB 982 (1978). The board formulated the Anheuser-Busch exception and 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 and consistent with the requirements imposed on employers by the Equal Employment Opportunity Commission’s Enforcement Guidance Regarding Anti-Harassment Policies.

Change in the Law—Piedmont Gardens 
On December 15, 2012, the board reversed Anheuser-Busch. In Piedmont Gardens, the board 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. Piedmont Gardens, 359 NLRB No. 46 (2012). 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 that 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 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 light of Piedmont Gardens, 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.

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 and controlling state law should be followed, with the objective of establishing a claim that that attorney-client privilege protects the statements from disclosure. Upjohn Co. v. United States, 449 U.S. 383 (1991).

Keywords: litigation, corporate counsel, Anheuser-Busch exceptionPiedmont Gardens

Gerald Morales is with Snell & Wilmer L.L.P in Phoenix, Arizona.