For nearly 40 years, the National Labor Relations Board has followed a bright-line rule pursuant to which an employer is privileged to withhold witness statements from unions. In its 1978 Anheuser-Busch Inc. decision, the Board held that an employer’s general duty under federal labor law to provide information to a union “does not encompass the duty to furnish witness statements themselves.” Late last month, however, in American Baptist Homes of the Westd/b/a Piedmont Gardens, the Board reversed itself and ruled that, going forward, it will apply a balancing test to union requests for witness statements and will require disclosure upon request unless the employer can establish “legitimate and substantial confidentiality interests” that outweigh a union’s need for the information. 

The Board first tackled this case in 2012. Then, the Board ditched Anheuser-Busch’s bright-line rule in favor of a balancing test. The Board’s first American Baptist Homes decision, however, was decided by an improperly-constituted Board and was invalidated by the Supreme Court’s Noel Canning decision. 

The current, properly-constituted Board recently took a second crack at American Baptist Homes. The case arose from the following facts: the employer received reports from three employees that a union-represented employee had been sleeping while on duty. The employer obtained witness statements as part of its investigation and discharged the sleeping employee. Following the employee’s discharge, his union representative filed a grievance and asked the employer for all relevant information regarding the discharge, including witness statements. In response, the employer declined to provide the witness statements and maintained that, based on Anheuser-Busch, “[t]he law does not require that we provide you with witness statements collected during our investigation.” 

Following the lead of the first American Baptist decision, the Board again, or for the first time depending on your perspective, overruled Anheuser-Busch based primarily on an employer’s duty under section 8(a)(5) of the National Labor Relations Act “to furnish a union with relevant information necessary to the union’s proper performance of its duties….” The Board noted that to establish relevance, “the information need not be dispositive of the issue between the parties but must merely have some bearing on it.” In practice, that will be an easy standard for a union to meet. 

The Board assured that a union’s right to witness statements is not limitless and a finding of relevance does not end the inquiry. Even where relevance is established, an employer may raise a “legitimate and substantial” confidentiality interest which may consist of the need to protect witnesses, the need to preserve evidence where there is danger of destruction, the need to prevent fabricated testimony, or the need to prevent a cover up. In cases where relevance and legitimate confidentiality interests are established, the Board then will balance the union’s need for the information against the employer’s confidentiality interest. 

The Board did not apply the balancing test in this case; to do so would have been “manifestly unjust” given the employer’s express reliance on Anheuser-Busch. As a result, the Board determined that the employer lawfully refused to disclose two of the three witness statements at issue. Interestingly, however, the Board determined that the third witness statement at issue did not qualify for the Anheuser-Busch exemption because the employee gave it without receiving any assurances of confidentiality. Employers should expect that if they attempt to raise a confidentiality defense under the new test, the Board will consider, among other factors, whether the employer promised confidentiality before the witness provided their statement. 

Board Members Miscimarra and Johnson dissented from the Board’s decision to overrule Anheuser-Busch. They both expressed their concern that the majority decision would undermine workplace investigations, would place employee witnesses at high risk of intimidation, harassment, and retaliation, and would discourage employees from providing witness statements. 

* John Swinney is currently a first-year law student at University of Notre Dame Law School and is a Franczek Radelet LEADS Fellow.