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NLRB Overrules Longstanding Precedent, Provides Opportunity for Unions to Obtain Confidential Witness Statements Used in Internal Investigations


January 4, 2013

Since 1978, employers had not been required to disclose witness statements provided in internal investigations to unions deciding whether to pursue various grievances. All that changed last week when the NLRB overturned its longstanding Anheuser-Bush precedent and made it easier for unions to acquire such statements, even if deemed confidential by the employer. This radical decision comes on the heels of another departure from established precedent, as we previously reported.

In American Baptist Homes of the West d/b/a Piedmont Gardens, the NLRB examined a fairly standard union request following the termination of an employee for sleeping on the job. The union requested that the employer produce all witness statements used in its investigation and the names and job titles of all employees involved in the investigation. The employer objected to producing the witness statements, which were protected under the bright line rule established by the NLRB in its 1978 Anheuser-Busch decision. Nonetheless, the union ultimately filed an unfair labor practice charge against the employer for failing to produce the statements.

The NLRB found Anheuser-Busch to be “flawed” and instead adopted the balancing test set forth in Detroit Edison, a 1979 Supreme Court decision. Under Detroit Edison, if requested information is relevant, then the party refusing to produce the information on the basis of confidentiality must prove “that a legitimate and substantial confidentiality interest exists, and that it outweighs the requesting party’s need for the information.” The NLRB championed this “flexible approach,” reasoning that it “adequately protects the interest of the employer and witnesses, while preserving the general right of requesting unions to obtain relevant information.” While this balancing test was previously only applied to requests for witness names, the NLRB chose to extend it to witness statements as well.

Dissenting Member Hayes stated that the majority’s decision will adversely affect an employer’s ability to conduct confidential investigations and protect witnesses from harassment, intimidation, and retaliation. The majority addressed this argument by highlighting the fact that such concerns may still outweigh a union’s request for witness statements, but that such a determination must now be made on a case-by-case basis, and not subject to a blanket prohibition. Member Hayes also pointed out that this case-by-case approach would foster uncertainty, resulting in unnecessary, burdensome unfair labor practice litigation that would “grind to a halt” the private grievance arbitration machinery that typically form the basis for such requests. 

The Piedmont Gardens decision represents a marked, pro-union departure from previous precedent. As a result of the decision, employers can no longer assert a blanket refusal to provide unions with witness statements used in internal investigations. Rather, employers must argue that confidentiality concerns outweigh the union’s right to the information. How this new balancing test will be applied is unclear, but it may not be wise for employers to take their chances with a generally pro-union NLRB. For these reasons, it is imperative that employers seek legal counsel to weigh their options before responding to such union requests. 

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