As 2012 Ends, So Does The Board's Longstanding Bright-Line Rule Protecting Witness Statements From Disclosure

As the calendar year ends, so does Member Brian Hayes's term, prompting a series of decisions, including Piedmont Gardens, 359 NLRB No. 46 (Dec. 15, 2012), in which the Board reversed 34 year-old precedent exempting witness statements gathered from an employer's internal investigation from disclosure to unions. In Piedmont Gardens the Board determined that, going forward, employers must apply the balancing test set forth in Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) when arguing that there is a confidentiality interest in protecting witness statements from disclosure. In so holding, the Board overruled Anheuser-Busch, Inc., 237 NLRB 982 (1978), which had created a "bright-line" rule exempting witness statements obtained by employers during investigations from the general obligation to honor union requests for information.

The issue presented to the Board in Piedmont Gardens was whether the employer violated Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act ("the Act") when it refused to provide the union with witness names, job titles and witness statements in response to a request for information. The union requested the information in connection with a grievance filed after an employee was terminated for sleeping on the job. Three individuals provided the employer with written statements – two of whom were expressly promised confidentiality in connection with their participation in...