Employers faced with evidence of employee misconduct often conduct investigations. In many cases, there is no direct evidence. Oftetimes, there exists conflicting versions of events, and so witness statements are obtained. The employer then can consider all the aspects of what happened, taking into consideration who saw what, and the candor of employees. For over 32 years, such witness statements have been considered confidential material that does not have to be turned over to a union during an ensuing grievance. The reasons for this rule are pretty obvious and logical: witnesses are almost always reluctant, and disclosing statements they give in an internal company investigation can subject them to undue pressure, and even coercion, from fellow employees and union representatives.

Despite the thirty plus year precedent, the Board may be considering reversing this rule as it continues to march forward with its new agenda. As reported earlier in this blog, the NLRB solicited briefs in Hawaii Tribune-Herald, 356 NLRB No. 63 (March 2, 2011).pdf to consider the circumstances under which a witness statement obtained by an employer during an investigation might have to be turned over to the union representative of the employees. The NLRB's invitation to file briefs seems to be straightforward and states the questions to be considered as

"This case illustrates, however, that Board precedent does not clearly define the scope of the category 'witness statements.' This case also illustrates that the Board's existing jurisprudence may require the parties as well as judges and the Board to perform two levels of analysis to determine whether there is a duty to provide a statement: first asking whether the statement is a witness statement under Fleming and Anheuser Busch, and then if the statement is not so classified, asking if it nevertheless is attorney work product. We have therefore decided to sever this allegation from the case and to solicit briefs on the issue it raises."

(Emphasis added). These are questions about the scope of the underlying precedent, as in, what exactly is a "witness statement"? Yet the Board, when it posted the on its website hinted that it might be pursuing a much broader agenda. The NLRB website poses the issue as "1)whether the Board should coninue to adhere to the holding in Anheuser-Busch, Inc., 237 NLRB 982 (1978), that an an employer's duty to furnish information under Section 8(a)(5) of the Act does not encompass the duty to furnish witness statements and, if not, what standard should be applied to requests for such statements."

Anheuser-Busch, Inc.,237 NLRB 982 (1978).pdf, of course, is the 1978 NLRB decision holding that witness statements are confidential material. The Board in that case, citing Supreme Court precedent held, unequivocally, that "requiring either party to a collective bargaining relationship to furnish witness statements to the other party would diminish rather than foster the integrity of the grievance and arbitration process." Id. at 984.

Counsel for the Hawaii Tribune-Herald immediately highlighted the major discrepancy between the NLRB website description of the issue and the invitation to file briefs in a March 21, 2011 Letter to NLRB.pdf We will see if the NLRB clarifies the issues. At a minimum, interested parties won't be sure what questions should even be addressed. The website version of the issue would be a major change of NLRB precedent that could impact every employer that has union represented employees.