With the New Year, we see many lists offering “predictions” about what will happen in 2013 – one of my favorites is the location of the upcoming nuptials between Brad Pitt and Angelina Jolie (an estate in France or a tent in Namibia appear to be the likely contenders).

How about one for labor and employment law?  In 2013 investigations of employee misconduct in unionized workplaces will be less thorough and there will be less of a paper trail documenting the misbehavior of employees who engage in such misconduct.   What a bad way to start the New Year!   This prediction is based on the NLRB’s last major decision in 2012, American Baptist Homes.

Generally speaking, unions have the right to request relevant information about employee disciplinary matters and employers must provide such information.   One bright-line exception was “witness statements.”   In Anheuser-Busch, 237 NLRB 982 (1978), the Labor Board held that when an employer obtains a witness statement as part of an investigation and assures the employee that the statement will remain confidential, the statement need not be turned over to the Union as part of an information request.   The reasoning was that giving the union this information would open the door to harassment, intimidation, and coercion of employees.

In American Baptist Homes, the Labor Board overturned Anheuser-Busch.   American Baptist Homes involved two charge nurses and one CNA who observed a union employee sleeping on the job.   All three were asked to provide written witness statements as part of the investigation.   After reviewing the witness statements, the employer terminated the sleepy employee.   The Union grieved the termination and asked for the witness statements in an information request.   The employer refused, relying on Anheuser-Busch.

The Labor Board decided that Anheuser-Busch was no longer good law and announced a new rule:  witness statements, like other information, must be released to the Union, unless the employer asserts a “legitimate and substantial confidentiality interest.”  This interest must “outweigh the requesting party’s need for the information.”   The burden is on the party asserting confidentiality to establish that interest,   Furthermore, the party asserting such an interest still has a duty to seek an accommodation.  Examples of possible “legitimate and substantial confidentiality interests” with witness statements include “the risk that employees or unions will intimidate or harass those who have given statements, or that witnesses will be reluctant to give statements for fear of disclosure.”

In a fiery dissent, Board Member Brian Hayes argued that employer investigation will be harmed by the Labor Board’s new rule.  Member Hayes said that “full and candid participation” in employer investigations is now,

“more than ever essential to employers challenged with increasing concerns about protecting employees and avoiding liability if they fail to maintain workplace safety or to identify and address workplace violence, bullying, sexual and other types of harassment. If employee witnesses cannot be assured that their statements will remain confidential, they will be reluctant to come forward with information that may be detrimental to their coworkers and avoid participating in the investigation.”

On top of that concern, Hayes rightly points out that the Labor Board’s decision is a classic example of the “right hand not knowing what the left hand is doing.”   After all, EEOC Guidance on employee investigations states that:

• “An anti-harassment policy and complaint procedure should contain, at a minimum, the following elements . . . Assurance that the employer will protect confidentiality of harassment complaints.”

• “An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible.”

According to the NLRB, “assuring confidentiality of harassment allegations to the extent possible” now means – your statement is confidential only to the extent the Union wants it (which it almost always will), only to the extent your employer wants to put up a fight and claim confidentiality (sometimes), and only to the extent the Labor Board decides it must be turned over if the Union decides that it disagrees with the employer’s  confidentiality (given the current Labor Board, the smart money is on always).   If employees know that the statement will not remain confidential, how many of them will really want to aid in an employer investigation and sign their name to a written statement?   That means that employers will probably have fewer witness statements, which is also a bad outcome – having extensive documentation of employee misconduct is one way to avoid allegations that discipline was motivated by a discriminatory or otherwise illegal reason.

The only positive to come out of this case for employers is that because Anheuser-Busch was a long-standing decision and many employers relied on it, the NLRB decided not to apply its new rule retroactively.   As a result, where the employer’s refusal to provide witness statements occurred before December 15, 2012 (the date of the decision), the Labor Board will continue to apply the Anheuser-Busch rule.   If the refusal occurred after that date, the new American Baptist Homes rule will govern.  Of course, given the other implications of the new rule, this is a small consolation.