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American Baptist Homes of West v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

June 6, 2017

American Baptist Homes of the West, doing business as Piedmont Gardens, Petitioner
v.
National Labor Relations Board, Respondent Service Employees International Union, United Healthcare Workers-West, Intervenor

          Argued February 9, 2017

         On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

          David S. Durham argued the cause for petitioner. With him on the briefs was Christopher M. Foster.

          Kellie J. Isbell, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Usha Dheenan, Supervisory Attorney.

          David A. Rosenfeld argued the cause for intervenor. With him on the brief was Bruce Harland.

          Before: Garland, Chief Judge, and Henderson and Wilkins, Circuit Judges.

          OPINION

          Garland Chief Judge.

         American Baptist Homes of the West, which does business under the name Piedmont Gardens, fired a nursing assistant after an internal investigation into allegations that he was sleeping on the job. The assistant's union requested the names, titles, and statements of witnesses involved in the investigation. Piedmont Gardens refused to provide the requested information.

         The dispute then became the subject of an unfair labor practice proceeding before the National Labor Relations Board (NLRB). The Board ultimately determined that Piedmont Gardens violated the National Labor Relations Act by withholding certain of the requested information, and it ordered the employer to produce that information to the union and refrain from violating the Act in the same manner in the future. Piedmont Gardens petitioned this court for review, and the Board filed a cross-application for enforcement of its order.

         I

         Under the National Labor Relations Act, an employer's duty to bargain with the representative of its employees includes the obligation "to provide information that is needed by the bargaining representative for the proper performance of its duties." NLRB v. Acme Indus. Co., 385 U.S. 432, 435-36 (1967). In determining whether an employer is required to turn over information like witness names, the Board applies the Detroit Edison test, under which it balances the union's need for the information against the employer's "legitimate and substantial" confidentiality interests. Detroit Edison Co. v. NLRB, 440 U.S. 301, 315, 318-20 (1979); see Oil, Chem. & Atomic Workers Local Union v. NLRB, 711 F.2d 348, 354 (D.C. Cir. 1983). Applying Detroit Edison in this case, the Board concluded that Piedmont Gardens violated the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5), by refusing to provide the names and titles of three individuals who said they witnessed the nursing assistant sleeping on duty. Am. Baptist Homes, 362 N.L.R.B. No. 139, at *8 (2015). Piedmont Gardens does not appeal that determination.

         Witness statements are another matter. In Anheuser-Busch, Inc., the Board held that an employer's "general obligation to honor requests for information" from a union "does not encompass the duty to furnish witness statements themselves." 237 N.L.R.B. 982, 984-85 (1978) (internal quotation marks omitted). Applying the Anheuser-Busch rule to the witness statements in this case, the Board concluded that Piedmont Gardens' refusal to produce the statements of two of the witnesses did not violate the Act because the statements were exempt from disclosure under that rule. 362 N.L.R.B. No. 139, at *8. That determination is also unchallenged on appeal.

         At issue on this appeal are the statements of a third witness, charge nurse Lynda Hutton. With respect to Piedmont Gardens' refusal to produce those statements, the Board found that the company violated the Act because they were not "witness statements within the meaning of Anheuser-Busch." Id. at *1. That was so, the Board said, because Hutton's statements "were not provided under an assurance of confidentiality." Id. at *9. Rather, she "gave the statements because it was one of her job duties to do so." Id.

         "We must uphold the judgment of the Board unless, upon reviewing the record as a whole, we conclude that the Board's findings are not supported by substantial evidence, or that the Board acted arbitrarily or otherwise erred in applying established law to the facts of the case." Mohave Elec. Co-op., Inc. v. NLRB, 206 F.3d 1183, 1188 (D.C. Cir. 2000). Piedmont Gardens disputes the Board's finding that Hutton was never given any assurance that her statements would be kept confidential. But substantial evidence in the record supports that finding, as well as the finding that the statements were motivated by Hutton's job duties and ...


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