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Keep Your Investigation Notes Confidential
Northern Indiana Public Service Co., 347 NLRB No. 17 (2006).
By Robin H. Kobayashi
[June 2006]
The National Labor Relations Act requires that employers provide relevant information to unions, upon request. During grievance proceedings, unions often request information about an employer’s investigation that led to discipline. On May 31, 2006, the Board issued a decision that permits employers to refrain from disclosing investigation notes of employee interviews under certain circumstances.
In Northern Indiana Public Service Co., 347 NLRB No. 17 (2006), the employer received a complaint that one of its supervisors behaved in a threatening manner toward an employee when the supervisor allegedly said, “Peace, love, and understanding, and then you empty the clip” while pointing his finger at an employee as if it were a gun. The Northern Indiana Public Service Company’s (NIPSCO) Equal Employment Opportunity manager and labor relations counselor, Barbara Sacha, investigated the matter with the employee and his supervisor, and interviewed each individual separately. Ms. Sacha prefaced each interview with assurances that she would keep each conversation completely confidential. Following the interviews, Ms. Sacha personally typed up her handwritten notes, kept the notes password protected, and did not provide her notes to any other manager. The Union filed a grievance on behalf of the complaining employee, and asked for various types of information, including Ms. Sacha’s interview notes. NIPSCO provided all of the requested information except the notes. Instead, NIPSCO provided the names of the individuals with whom Ms. Sacha interviewed. Local Union No. 12775, United Steelworkers of America, a/w United Steelworkers of America, AFL–CIO–CLC (the Union) filed an unfair labor practice charge against NIPSCO.
The Board found that NIPSCO was not required to provide the Union with Ms. Sacha’s notes. In reaching this finding, the Board found that NIPSCO’s interest in maintaining the confidentiality of the information was greater than the Union’s need for the information because the notes failed to measure NIPSCO’s compliance with the collective bargaining agreement; the information only confirmed or denied statements between the employee and his supervisor. The Board also found that NIPSCO had a legitimate interest in maintaining the confidentiality of the statements, which was to encourage employees to reveal information and protect those employees who gave statements from retaliation. Finally, the Board found that NIPSCO made a reasonable accommodation because it provided the Union with all of the names of the people with whom Ms. Sacha interviewed and all other requested information. Moreover, the Union already knew the facts alleged by the employee and the circumstances surrounding the incident.
This decision provides significant guidance on keeping information obtained during an employment investigation confidential. First, this decision demonstrates that the Board places particular emphasis on promises of confidentiality, especially in those situations where candor is vital and fear of retaliation is likely. Second, an employer’s disclosure of interview notes will incur greater protection if the information contained in the interview notes will neither provide a basis for a grievance nor measure the employer’s compliance with a contractual standard. Therefore, we recommend the following to protect the confidentiality of interview notes:
- At the outset of each interview, inform interviewees that you will keep the information confidential as possible and will reveal it only if necessary to conduct a thorough investigation.
- Include only factual statements about what happened by the witnesses in your interview notes.
- Keep your interview notes completely confidential with password protection. Do not share your notes with anyone. Reveal only the facts obtained from your interviews with those who need it to conduct a thorough investigation.
- Provide a reasonable accommodation to the Union – provide the Union with enough facts so that it may conduct the same investigation that the employer conducted.
For more information, please contact:
This advisory is a publication of the Employer Services Department of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent developments in employment law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may be given only in response to inquiries regarding particular situations.
Copyright © 2006, Davis Wright Tremaine LLP.
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