More than 35 years after its decision in Anheuser-Busch, Inc., 237 NLRB 982 (1978), the NLRB has reversed course and held that employers may no longer summarily reject union requests for witness statements obtained in connection with internal investigations.
In Am. Baptist Homes of the W., 362 N.L.R.B. 139 (2015), an employer terminated a union employee after several other employees reported that she was sleeping on duty. The union grieved the employee’s termination, and requested that the employer turn over the witnesses’ written statements. The employer rejected the union’s request on grounds that the Anheuser-Bush decision exempted all witness statements from disclosure.
In a surprising move, the NLRB concluded that the rationale in Anheuser-Busch is “flawed,” and that the confidentiality of witness statements should be evaluated on a case by case basis in accordance with the balancing test set forth in Detroit Edison v. NLRB, 440 U.S. 301 (1979). The balancing test weighs the union’s need for requested information against the legitimate and substantial confidentiality interests established by the employer. Some of the factors that weigh in favor of a substantial confidentiality interest include:
- the investigation witnesses’ need for protection;
- whether evidence is at risk of being destroyed;
- whether testimony is at risk of being fabricated; and
- the risk of a cover-up.
The dissenters note that the majority opinion discourages employees from cooperating with internal investigations. In contrast, the majority sets forth that witness names and job titles were already subject to disclosure under Anheuser-Busch, and, therefore, the disclosure of witness statements should not increase the risk that witnesses would be retaliated against for their participation in an employer’s investigation.
Although the majority’s contention that witness names and job titles were already subject to disclosure is well taken, the distinction between a witness’ name and their written statement should not be understated. Witnesses certainly feel more comfortable knowing that only their names can be disclosed to the union as opposed to their names and written statements, particularly if their statements serve as a basis for another employee’s discipline or termination.
While it is too early to tell how employers will respond to the NLRB’s recent decision, it is anticipated that many employers will opt to turn over all witness statements in order to avoid the risk of committing an unfair labor practice. It also remains to be seen how the decision will impact employer investigations, and whether employees will hesitate to cooperate given that their witness statements may now be shared with the union.
Moving forward, employers should be candid with their employees about the possibility that their statements may be disclosed to the union. However, employers should also engage in meaningful dialogue with their employees to determine whether there are any compelling reasons to keep their statement confidential.