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

As the calendar year ends, so does National Labor Relations Board Member Brian Hayes' term, prompting a series of decisions, including Piedmont Gardens, 359 NLRB No. 46 (Dec. 15, 2012). There the Board reversed 34 year-old precedent exempting witness statements gathered from an employer's internal investigation from disclosure to unions under Section 8(a)(5) of the National Labor Relations Act ("the Act"). In Piedmont Gardens, the Board determined that, going forward only, employers must apply a 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 Act when it refused to provide the union with witness names, witness 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 co-workers provided the employer with written statements. Two of those co-workers 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 related job titles, but did not violate the Act by refusing to produce the witness statements, given the clear rule in Anheuser-Busch shielding such...