The National Labor Relations Board (NLRB) recently affirmed that employers may not reject union requests for access to witness statements that the company obtained while investigating claims of employee wrongdoing. This decision marks the latest in a tortuous path that now overturns more than 30 years of legal precedent.
Way back in 1978, the NLRB declared in Anheuser-Busch, Inc., 237 NLRB 982 (1978) that a witness statement was different from other employer data and therefore was not within the scope of information that unions could demand from employers. That legal standard held firm until 2012 when the NLRB changed course, deciding that the employer had an obligation to turn over witness statements to the union. That decision was vacated, however, when the US Supreme Court ruled that President Obama’s “recess appointments” to the NLRB were unconstitutional and the decisions issued during their tenure were invalid.
Witness Statements are Not Confidential
After new members were officially seated, this issue was considered anew and the reconstituted NLRB again overturned Anheuser-Busch, ruling in American Baptist Homes of the West (Piedmont Gardens) that employers must turn over witness statements when demanded to do so by the union. The NLRB reasoned that a unionized employer has a duty to provide information relevant to a union’s performance of its bargaining duties, and that they were “not persuaded that witness statements are so fundamentally different from other types of information that a blanket exemption from disclosure is warranted.”
The NLRB acknowledged that there might be some instances where protection of witness statements was warranted (e.g. avoiding witness intimidation or harassment) but there simply was no reason why a general exemption should apply. Thus, from now on, when access is requested, an employer seeking to prevent disclosure has the burden of establishing a legitimate confidentiality interest that outweighs the union’s need for the statements.
The dissenting members of the NLRB cited the risk that employees might now be more reticent about providing statements since they are more likely to be exposed to intimidation and retaliation. This in turn will impair employers’ abilities to maintain safe and productive workplaces. These concerns failed to carry the day.
Bottom Line
This decision could make it very difficult for unionized employers to conduct adequate investigations. While employees participating in investigations may have understood that they could be called upon to testify in an arbitration or court proceeding, they also knew that most such matters got resolved long before testimony was required. Now that the union can access witness statements in every investigation, it might be far more difficult to persuade employees to participate when they know that they will be second-guessed and judged by the union, their co-workers and the accused.
Of course, it is also good to remember that employers have the same right to demand statements from the union, and employers should always consider requesting that the union produce any witness statements or recordings for the purpose of evaluating the merits of a grievance