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Since June 2011, Piedmont Gardens, the Service Employees International Union (SEIU) and the National Labor Relations Board (NLRB) have been at odds about how to handle workplace investigations. More specifically, their dispute centers on whether employers must turn over to a union confidential statements made by employees during the course of the investigation. After the case started nearly six years ago, a federal appeals court is now considering the issue. The resolution of this case matters to every unionized employer because it gets to the heart of whether or not employees will feel safe cooperating with workplace investigations.
The case in question, Piedmont Gardens¸ arose after a Certified Nursing Assistant (CNA), who was represented by the SEIU, was reportedly caught sleeping on the job at a continuing-care facility in California. After an official investigation by the employer ensued, three employees provided statements regarding the incident with the understanding that their statements would remain confidential. When the investigation concluded, the sleepy CNA was fired, whereupon her union requested information from Piedmont Gardens regarding the investigation.
Seeking to protect the confidentiality of the employees who came forward, Piedmont Gardens did not provide their names, titles, or official statements to the SEIU. However, the SEIU argued that regardless of whether they were obtained confidentially, the witness statements should be provided to them so they could fulfill their representational role. When Piedmont would not budge, the SEIU filed an unfair labor practice charge with the NLRB.
The NLRB administrative law judge who first heard the case acknowledged that Piedmont Gardens had a responsibility to give information to the SEIU, but also cited Anheuser-Busch, a 1978 case holding that witness statements could be withheld from unions, especially if they were given with the promise of confidentiality. The SEIU then appealed the adverse ruling to the Board.
In yet another example of its penchant for disregarding longstanding precedent, the NLRB in 2015 reversed Anheuser-Busch and found in favor of the SEIU. In its ruling, the majority breezily dismissed the nearly 40 year precedent, saying, “we find that the rationale of Anheuser-Busch is flawed,” and “we reject the premise of Anheuser-Busch that witness statements are unique and fundamentally different from the types of information” employers must otherwise provide. Thus, the Board seemed to ignore the fact that if employees know their “confidential” statements are no longer confidential, they are unlikely to assist in any workplace investigation. How employers are expected to maintain safe and productive workplaces free of harassment and coercion in such an environment is anybody’s guess.
Fortunately, Piedmont Gardens has appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit, which heard oral arguments on February 9. Surprisingly, the NLRB actually argued that Piedmont Gardens lacks standing because the 2015 decision was to be applied “prospectively.” However, Piedmont argues that the damage has already been done because of the new policy in place, so the D.C. Circuit will decide that issue as well.
As this blog has observed in the past, this case could have significant implications for employers, and it is worth monitoring. Add this to the list of issues the NLRB will need to revisit once new members are confirmed.