When is a witness statement protected from disclosure to a union that requests it? That was the question before the National Labor Relations Board in Hawaii Tribune-Herald, one of several important cases decided in the past two weeks by the NLRB.
Hawaii Tribune-Herald, 359 NLRB No. 39 (Dec. 14, 2012), began as a result of an altercation between an employee-union steward and a supervisor. An employee who had witnessed the previous day’s altercation was asked to sign a short written account of the incident that had been prepared by a company supervisor. After making some corrections, the employee signed the document. Sometime later, the supervisor wrote the following at the top of the document: “prepared at the advice of counsel in preparation for arbitration.” (At the time the statement was signed, the union steward had not been disciplined and no grievance had been filed.) On the same day, the employer suspended the steward. He was discharged him several days later and the union filed a grievance challenging the suspension and discharge.
As often happens when a union initiates a grievance, the union requested the employer to furnish it with information pertinent to the grievance, including the employee’s statement. However, in this case, the employer refused. It claimed the statement was a witness statement, and that it therefore was protected from disclosure under existing NLRB law. (In 1962, the NLRB held in Anheuser-Busch that the general duty of an employer under the National Labor Relations Act to furnish information to a union “does not encompass the duty to furnish witness statements.”) The union filed an unfair labor practice charge alleging the employer had violated the NLRA by failing to furnish the statement.
In Hawaii Tribune-Herald, the NLRB first decided that the threshold question was whether the document in dispute was, indeed, a witness statement. If it was, it would be exempt from disclosure. After reviewing Anheuser-Busch and two other of its decisions, the NLRB concluded that two factors are important in determining whether a document is a witness statement that is exempt from disclosure:
- the witness must, in some way, either through reading or reviewing the statement or having it read to him, adopt the statement as his own; and
- the witness must receive an assurance that the statement will remain confidential.
Here, the NLRB decided that the document was not a “witness statement” because the employee-witness had not received any assurance of confidentiality from the employer.
The case did not end with this conclusion, however. The employer also claimed the statement was exempt from disclosure pursuant to the “attorney work-product” doctrine. The NLRB disagreed. It remarked that the doctrine “protects from disclosure written material prepared by a party or his representative in anticipation of litigation or for trial,” rather than “pursuant to routine investigations conducted in the ordinary course of business.” It observed that the employer had the burden of proving the document had been prepared or “created” in anticipation of “foreseeable” litigation or for trial by a preponderance of the evidence. In Hawaii Tribune-Herald, though, it decided the employer in this case had not met that burden for two reasons:
- The employer did not prove the employer’s attorneys had suggested that the employee-witness prepare and sign a statement specifically because of the prospect of litigation. Instead, it was “equally plausible” the statement had been prepared as part of a “routine investigation conducted in the ordinary course of business.”
- The note on the document that it was “prepared at the advice of counsel in preparation for arbitration” did not transform the document into attorney work-product.
Hawaii Tribune-Herald offers instruction for an employer that wants to protect a document from disclosure as a witness statement and pursuant to the attorney work-product doctrine. It also underscores the importance of preserving and presenting specific proof to the NLRB regarding these statements. Its lessons include the following:
- The employer’s attorney should request (in writing) that the statement be created.
- The record should show the employer and its attorneys believed the statement was necessary because specific litigation (e.g., a grievance regarding a decision to terminate or perhaps a discrimination charge) “was a real possibility.”
- The witness should be given assurances that his statement will remain confidential.
- The witness should be required to read the statement.
- The statement should contain an acknowledgment by the witness, such as: “I have read and understand the foregoing and adopt it as my witness statement.”