Workplace Misconduct – Disclosure of Employee Witness Statements

On many occasions, an employer’s investigation of workplace misconduct relies heavily upon observations and testimony of co-employees.  During the investigation, an employer will request that the co-employees submit witness statements.  For decades, unions have argued that public employers must provide these employee witness statements to enable them to effectively process the grievance filed by the disciplined employee.

Under the Public Employee Relations Act (PERA), a School District is required to provide a union with information that is relevant to the processing of a grievance.  The Pennsylvania Labor Relations Board (PLRB) has determined that the information is relevant if (1) the union has filed a grievance governed by the party’s collective bargaining agreement, and (2) the information would be useful to the union.  This is a fairly broad and all-encompassing standard.  For example, the PLRB has required that a public employer provide investigative reports and the names of witnesses to a union.  However, the PLRB does protect employee witness statements from disclosure.  In doing so, the PLRB adopted the National Labor Relations Board’s (NLRB’s) holding in the 1978 Anheuser-Busch, Inc. case which excluded witness statements from an employer’s duty to provide information.  The 1978 NLRB decision recognized that a risk existed for either party to intimidate employees or others who had provided statements in an effort to make them change their testimony or not testify at all.  This effectively silenced unions’ requests for employee witness statement until the last couple years.

Now, unions are emboldened by a fairly recent NLRB decision which overturned its 1978 holding and adopted a balancing test.  The NLRB requires employers to provide witness statements unless the employer establishes that there is a confidentiality concern that outweighs the union’s need for the statements.  Since the NLRB overturned its Anheuser-Busch holding, unions assert that the PLRB should do likewise.  However, the PLRB, as recently as its 2012 Final Order in Gas Works Employees Union Local 686 v. Philadelphia Gas Works, reaffirmed that while decisions of the NLRB may provide guidance, they are not binding on the PLRB’s interpretation of PERA, especially when the PLRB has been consistent with its policy and the NLRB has not.  In the Philadelphia Gas Works Final Order, the PLRB restated that the rationale behind its policy for excluding witness statements was to promote full and open disclosure by persons who might have knowledge of employee misconduct and to prevent the risk that witnesses might be coerced or intimidated by either side.  Both sides may still collect necessary information and are not impeded by the PLRB’s decision not to require witness statements to be produced.  The names of witnesses are provided which then permit either side to interview witnesses and obtain their statements.  The PLRB was critical of the NLRB’s new balancing test and expressed concerns that employee witnesses might be reluctant to step forward, thereby hindering an employer’s ability to properly investigate misconduct.  Based upon this, the PLRB in Philadelphia Gas Works explicitly reaffirmed its longstanding policy that witness statements are excluded from disclosure.

If your School District is confronted by a union request to provide witness statements while processing a grievance, you may take a firm stand and refuse to provide the statements, even if threatened with an unfair labor practice charge.  Although witness statements need not be provided, the union is entitled to the names of employee witnesses.

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