NLRB Overturns Long-standing Precedent, Gives Unions Access to Confidential Witness Statements

Last month, the National Labor Relations Board (NLRB or Board) overruled long-standing precedent that allowed employers to protect confidential witness statements taken during company investigations by not providing them to a union in response to information requests. In its place, the Board instituted a balancing test in its June 26, 2015 decision American Baptist Homes of the West d/b/a Piedmont Gardens (NLRB 2015), in which it will weigh an employer’s need to protect confidential information against the union’s stated need for the statements to carry out its responsibilities.

In 1978, the Board held in Anheuser-Busch (NLRB 1978) that the general duty to furnish information “does not encompass the duty to furnish witness statements themselves.” For the past 37 years, employers have relied on this decision to assure employees who gave statements during an investigation that the statements would not be turned over to the union. However, in this most recent decision, the Board majority concluded that the rationale of Anheuser-Busch was flawed and, in its view, “national labor policy will be best served by overruling that decision and instead, evaluating the confidentiality of witness statements under the balancing test.” The Board majority did acknowledge that an employer could have a legitimate and substantial interest that “must be accommodated,” such as avoiding witness intimidation or harassment.

In light of this decision, the challenge for employers going forward will be whether they can conduct a fair and objective investigation. Board Member Philip A. Miscimarra notes in his dissent that “when employees step forward to provide information that may involve a coworker’s misconduct, there is little question that they risk coercion, intimidation, harassment, and retaliation, and this risk is especially high if the employer is required to disclose their witness statements to a union.” For this reason, employees may be hesitant to provide witness statements and employers may be less effective in conducting investigations that are often critical to maintaining safe and legally compliant workplaces.