The defense is traditionally a tough one for employers to prove, as they are required to show that there is a “legitimate and substantial confidentiality interest” that outweighs the interests of the union in obtaining the information. The confidentiality argument serves as an affirmative defense to not producing relevant information. Generally, a union is entitled to information that is relevant to their duties as representative of an employer’s employees. Further complicating the situation is where a witness – as was the case here – is reluctant to come forward and only does so after being assured that their identity would remain confidential. This concern is reasonable, particularly where the alleged harasser is well-connected or respected in the union, giving union officials an incentive to be less-than-understanding of witnesses who provide incriminating information that leads to discipline. The employer produced the investigation notes but redacted the names of the witnesses, claiming they were confidential and the production of them could leave the employee susceptible to harassment or retaliation by the union grieving the discipline. After the disciplinary decision was made, the union filed a grievance and made a customarily broad request for information, including copies of the employer’s investigation notes and the names of the employee-witnesses. Those are the basic facts of American Medical Response West, a recent NLRB decision in which the board said an employer violated the NLRA when they refused to disclose, to the union, the names of the witnesses that they interviewed. In some workplaces, the hard work is over once the investigation is complete, but with a union, the hard work is yet to come. The employer interviews a number of witnesses, including the alleged victim and harasser, and a disciplinary decision is made. An employer conducts an investigation into allegations that an employee sexually harassed another employee.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |