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To Disclose or Not to Disclose: NLRB Overrules Precedent Regarding Witness Statements

Labor & Employment Law Alert

In a decision overruling more than 30 years of precedent, the National Labor Relations Board ("NLRB" or "Board") issued a decision on December 15, 2012 holding that employers generally will be required to produce witness statements they obtain in internal investigations when unions request those statements for grievance or arbitration purposes. (Am. Baptist Homes of W. d/b/a Piedmont Gardens, 359 NLRB 46, 12/15/12 [released 12/21/12]).

Before the December 15, 2012 decision, employers had relied on Anheuser-Busch, 237 NLRB 982, 99 LRRM 1174 (1978), to withhold witness statements obtained during investigations of workplace misconduct. Anheuser-Busch held that employers had no legal obligation to disclose such statements, even when unions requested them to determine whether to grieve or arbitrate related discipline, because of the possibility of witness tampering or harassment.

In Piedmont Gardens, the employer obtained witness statements from three employees in its investigation of a report that an employee had been sleeping on the job. The employer promised two of those witnesses that their statements would be kept confidential. Following the employee's discharge for sleeping on the job, the union filed a grievance and requested information including the names, job titles and written statements of any witnesses related to the investigation. The employer, citing Anheuser-Busch, 237 N.L.R.B. 982 (1978), refused to produce the information and told the union it was willing to discuss an accommodation to disclosure. The union then filed a charge with the NLRB.

An NLRB administrative law judge found that the employer had violated Sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act ("NLRA") by refusing to disclose the employee names and job categories, but had not violated the NLRA with regards to the witness statements based on Anheuser-Busch.

On appeal, the Board overruled Anheuser-Busch, concluding that it had been based on "flawed" logic. In its place, the Board held that the balancing test articulated in Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979), would now apply. Under that test, if the requested information is deemed to be relevant, the employer must prove that a legitimate and substantial confidentiality interest exists and outweighs the requesting party's need for the information. Any objection to disclosure must be made in a timely manner and be accompanied by an attempt by the refusing party to seek an accommodation.

The Board made clear that the newly-applied balancing test will only be effective prospectively. Decisions to withhold witness statements in response to information requests made before Piedmont Gardens are not affected.

The major takeaway from the decision is that witness statements are now fair game for union information requests. Employers can still opt to withhold witness statements, but the burden will now be on them to prove that a legitimate and substantial confidentiality interest exists and outweighs the union's need for the information. We anticipate that, in most fact situations, employers will not be able to convince the NLRB that they have met that burden. Note that employers wishing to protect witness statements from disclosure should promise the witnesses confidentiality to the extent permitted by law, as that may be one factor in the NLRB's analysis although it will not guarantee that the statements will not have to be disclosed.

If you have any questions, please contact your Quarles & Brady attorney.