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 the investigation. The administrative law judge ("ALJ") determined that the employer violated the Act by refusing to provide the union with witness names and job titles, but did not violate the Act by refusing to produce the witness statements given the clear rule in Anheuser-Busch shielding such statements from disclosure.

The Board agreed with the ALJ that the employer violated the Act by refusing to furnish witness names and job titles. The employer's general rule to treat such information as confidential did not negate its obligation to provide relevant information to the union. With respect to the witness statements, the Board determined that they are not fundamentally different from other types of information, and that the Anheuser-Busch blanket rule exempting witness statements from disclosure, no matter the circumstances, was unwarranted. Instead, the Board held that the appropriate standard applicable to the disclosure of witness statements is the balancing test set forth in Detroit Edison.

Thus, going forward, employers can no...