Board Overrules Longstanding Protections Against Disclosure Of Witness Statements

Background

Since 1978, the National Labor Relations Board (NLRB) has treated witness statements as exempt from an employer's general duty to furnish information to unions under Section 8(a)(5) of the National Labor Relations Act (NLRA). The NLRB first articulated this rule in Anheuser-Busch, Inc., 237 NLRB 982, 984-985 (1978), where the Board held that the general duty to furnish information "does not encompass the duty to furnish witness statements themselves." Although the Board generally required an employer to provide summaries of the content of witness statements, under Anheuser-Busch, an employer could lawfully refuse to provide the witness statements themselves. A key policy rationale for this categorical rule was to protect the integrity of employer investigations and to protect witnesses from reprisal and intimidation, particularly employees who provided incriminating information against fellow bargaining unit members.

On June 26, 2015, in Piedmont Gardens, 362 NLRB No. 139 (June 26, 2015), the NLRB overruled Anheuser-Busch, Inc. and articulated a new test for analyzing whether an employer is obligated to disclose witness statements under the NLRA.

The Board will now analyze an employer's duty to disclose witness statements under the framework of Detroit Edison v. NLRB, 440 U.S. 301 (1979). Under Detroit Edison, the Board balances the union's need for the requested information against any "legitimate and substantial confidentiality interests established by the employer." The Board in Piedmont Gardens did not foreclose an employer's ability to withhold witness statements from disclosure based on confidentiality concerns, but instead ruled that such concerns must be supported by the particular facts of the case, as weighed against the union's need for such information. The Board did not identify any specific factors which would tend to justify nondisclosure, although it did allude to the original concerns underlying the Anheuser-Busch rule - fear of reprisal and intimidation - as possible justifications. However, justification must now be established by the specific circumstances of the case, rather than presumed as a general matter or asserted without factual support.

Facts

In Piedmont Gardens, the employer was advised that an employee might have been sleeping on the job, as witnessed by fellow bargaining unit members. The employer requested that one of the witnesses voluntarily provide a statement outlining her observations, and assured...