Stuck in Reverse: NLRB Now Rules That Employers May Have to Produce Witness Statements to Unions

The Anheuser-Busch Case

In Anheuser-Busch, 237 NLRB 982 (1978), the Board held that employers did not need to produce witness statements before an arbitration because requiring such disclosure “would diminish rather than foster the integrity of the grievance and arbitration process.” The Board reasoned that witness statements are “fundamentally different” from other types of information and requests for their disclosure raise “critical considerations which do not apply to requests for other types of information.” The Board emphasized that witnesses whose statements are disclosed prior to arbitration hearings could be subject to coercion and intimidation. Further, the Board observed that witnesses may be hesitant to provide a statement in the first place absent an assurance that the statement will not be disclosed prior to the hearing.

The Majority’s Ruling

In American Baptist Homes of the West, Chairman Pearce and Members Hirozawa and McFerran reversed Anheuser-Busch, holding that “national labor policy will best be served by overruling that decision and, instead, evaluating the confidentiality of witness statements under the balancing test set forth in Detroit Edison,” 440 U.S. 301 (1979).  According to the Democratic majority, “[e]stablishing a legitimate and substantial confidentiality interest requires more than a generalized desire to protect the integrity of employment investigations.”  An employer must instead “determine whether in any give[n] investigation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, [or] there is a need to prevent a cover up.”

If such showing is made, the Board will then weigh the party's interest in confidentiality against the requester's need for the information. Even if the Board concludes that the confidentiality interest outweighs the requester's need, the party asserting confidentiality may not simply refuse to provide the information, but rather must seek an accommodation that would allow the requester to obtain the information it needs while protecting the party's interest in confidentiality. The majority asserted that “[s]ince the Supreme Court's decision in Detroit Edison, the Board has applied this test in all cases where a party has raised a confidentiality defense to a request for information, except where the requested information is witness statements.”  The majority concluded that “this approach will effectively protect both the employer and the witnesses where the employer raises a reasonable concern regarding confidentiality, harassment, or coercion, while also safeguarding the union's statutory right to obtain information relevant to grievance processing.”

Nevertheless, the Board did not apply this new rule retroactively to the case before it, because their ruling “marks a departure from longstanding precedent, and the Respondent expressly relied on preexisting law under which its refusal to provide the witness statements was unquestionably lawful.”  The ruling will, however, apply prospectively.

The Dissents

Members Miscimarra and Johnson issued long and sometimes blistering dissenting opinions.  Member Miscimarra reasoned as follows:

I believe the Act requires the Board to balance the importance of taking reasonable measures to foster confidentiality regarding workforce investigations, including the confidentiality of witness statements, against the impact of nondisclosure on NLRA-protected rights. The majority relegates this balancing to employers with instructions to conduct a de novo case-by-case appraisal of the need for confidentiality, based on a standard that will nearly always require disclosure. By requiring employers to perform this balancing on a case-by-case basis, I believe my colleagues improperly disregard the Board’s “responsibility” to apply the Act “to the complexities of industrial life.”

For his part, Member Johnson observed:

For over 30 years, the rule has supported employers’ efforts to assure employee participation in workplace investigations, protected participating witnesses from intimidation, retaliation or harassment by a union or coworkers, enabled employers to effectively conduct investigations of workplace misconduct, and promoted the expeditious resolution of misconduct issues in grievance-arbitration systems. Because strong confidentiality concerns are inherent to all internal employer investigations into employee misconduct, it is my view that an employer should never be required to disclose witness statements to the union. Compelling the production of witness statements will undermine an employer’s ability to investigate claims of workplace violence, harassment, theft, drug and alcohol use, and other forms of serious misconduct in the workplace.

Conclusion

The new rule will undoubtedly require employers to play a difficult guessing game as to whether or not they should produce witness statements to a union prior to an arbitration hearing.  This in turn may persuade employers not to obtain witness statements prior to a hearing, and hope that witnesses will not be coerced or intimidated into giving different testimony.  In either event, it is not a good result for employers.