NLRB Rules Witness Statements Are No Longer Confidential

“In yet another reversal of longstanding, bright-line precedent, the National Labor Relations Board (NLRB or Board) has changed dramatically the rule applicable to employers in responding to union information requests seeking employee witness statements collected during a workplace investigation.” (Ogletree Deakins)

Since 1978, the National Labor Relations Board (NLRB) allowed employers to maintain the confidentiality of employees who provide witness statements as part of internal workplace investigations. Those days are over.

On December 15, 2012, the NLRB ruled that an employer’s refusal to provide the union with the names and witness statements of three workers was a violation of the National Labor Relations Act. Amy Zdravecky and Neil Goldsmith of law firm Franczek Radelet explain:

“… the NLRB examined a fairly standard union request following the termination of an employee for sleeping on the job. The union requested that the employer produce all witness statements used in its investigation and the names and job titles of all employees involved in the investigation. The employer objected to producing the witness statements, which were protected under the bright line rule established by the NLRB in its 1978 Anheuser-Busch decision.”

The union filed an unfair labor practice claim against the company for withholding the information, and the administrative law judge (ALJ) who first heard the dispute agreed with the union. From Tracy Stott Pyles (law firm Littler):

“The ALJ determined that the employer violated the Act by refusing to provide the union with witness names and related job titles… The Board agreed with the ALJ … specifically conclude[ing] that 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 investigatory information, and that the Anheuser-Busch blanket rule exempting witness statements from disclosure, no matter the circumstances, was unwarranted.”

What does the ruling means for employers and HR managers who conduct investigations?

1. Blanket promises of confidentiality are no longer possible:

“While we think that employers should continue to offer employee witnesses confidentiality, the reality is that an employer will no longer be able to offer that protection with absolute certainty. Therefore, employers may want to modify how they articulate the protection—‘we will do our best to maintain the confidentiality of your statement during the course of this investigation but may be required by law to produce the statement to the union if they make a timely and appropriate request.’” (Ogletree Deakins)

2. There still may be ways to protect witnesses:

“In light of these difficult obstacles, employers may wish to consider options beyond the normal witness statement. In some instances, especially where related litigation has been filed or is threatened, attorney work product protections may exist, although it is not clear that the NLRB would recognize that defense. In other instances, the employer may choose to actually forego a formal witness statement, although that obviously has potential negative ramifications if the witness later changes his or her mind (due to union or coworker pressure or otherwise) about what he or she witnessed.” (Littler)

3. Bottom line – internal investigations just got more complicated:

American Baptist and Banner Health constitute an assault on the principle of confidentiality in workplace investigations which will almost assuredly complicate the investigative process for employers. For example, in his dissent in American Baptist, [NLRB] Member Hayes noted that abandoning a bright line rule of an exemption in favor of the confidentiality balancing test will result in even more Board litigation as parties now fight over the disclosure of statements which will result in the grievance procedure ‘grind[ing] to a halt waiting a final Board decision….’” (Proskauer)

The updates:

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