United States Court of Appeals, District of Columbia Circuit
American Baptist Homes of the West, doing business as Piedmont Gardens, Petitioner
National Labor Relations Board, Respondent Service Employees International Union, United Healthcare Workers-West, Intervenor
February 9, 2017
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board.
S. Durham argued the cause for petitioner. With him on the
briefs was Christopher M. Foster.
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.
A. Rosenfeld argued the cause for intervenor. With him on the
brief was Bruce Harland.
Before: Garland, Chief Judge, and Henderson and Wilkins,
Garland Chief Judge.
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
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.
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.
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.
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.
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 ...