Hunton Employment & Labor Perspectives

In American Baptist Homes of the West d/b/a Piedmont Gardens (“Piedmont Gardens”), 362 NLRB 139 (June 26, 2015), the NLRB overruled longstanding precedent protecting the confidentiality of employee witness statements and adopted a new rule that balances the union’s need for the witness statement with the employer’s “legitimate and substantial confidentiality interests.” Since 1978, employee witness statements received by employers have been automatically exempt from disclosure to unions, no matter the circumstances. Now, as a result of Piedmont Gardens, an employer who cannot establish that it has a legitimate confidentiality interest that outweighs the union’s interest must disclose witness statements to the union in full. This will likely force employers to change the way they conduct investigations.