The National Labor Relations Board on December 15, 2012, issued its decision in American Baptist Homes of the West, d/b/a Piedmont Gardens, 359 NLRB No. 46 (2012), ruling that, in determining whether an employer must provide witness statements to a union representing an employee who has been disciplined based on investigation during which those statements were obtained, the NLRB will henceforth balance the confidentiality interests of the employer against the union’s need for the information.  Piedmont overrules a prior NLRB decision, Anheuser-Busch, Inc., 237 NLRB 982 (1978), which had established a bright-line test excluding such statements from disclosure.  The Board noted that the U.S. Supreme Court in Detroit Edison Co. v NLRB, 440 U.S. 301 (1979) called for just such a balancing test.  

Piedmont is a continuing care facility where statements were taken from two employee s who claimed to have witnessed a certified nurse aid asleep on the job.  That CNA was discharged over the incident. The union representing employees at Piedmont requested all information used in the termination, including witness statements. The employer refused had refused.

The Board in Piedmont balanced the needs of the union representing the discharged member against “any legitimate and substantial confidentiality interests established by the employer.” However, the NLRB decided not to apply its new rule retroactively and therefore found for Piedmont.