Consistent with its recent pattern of expanding the rights of employees and unions, the National Labor Relations Board ("Board") appears to be reconsidering its long-standing precedent that employers need not provide witness statements obtained in the course of disciplinary investigations to unions representing their employees. Before now, the Board had taken the position that the duty to furnish information "does not encompass the duty to furnish witness statements themselves." In its decision in Hawaii Tribune Herald, 356 NLRB No. 63 (2011), however, the Board stated that "Board precedent does not clearly define the scope of the category of 'witness statements'" and suggested that certain documents or statements may not be protected by the attorney work product doctrine.
In the underlying case, the employee at issue was fired for insubordination. The union subsequently submitted a request to the employer for all information that the employer considered in making its decision, including all information provided by employee witnesses. Relying on past Board precedent, the employer took the position that any witness statements were privileged and, thus, it was not required to produce them to the union. The union then filed an unfair labor practice charge asserting that, under Sections 8(a)(1) and (5) of the National Labor Relations Act - which establish the general duty to provide information - the employer was required to provide copies of witness statements obtained during the investigation. Severing the witness statement issue from the rest of the case, the Board has invited the parties, as well as interested third parties, to submit briefs on the issue by April 1, 2011. The Board's ultimate decision on this issue could significantly alter the manner in which internal disciplinary investigations are conducted and grievances are processed.