Recently, the National Labor Relations Board (NLRB) issued a Notice and Invitation to File Briefs concerning an employer's duty to furnish "witness statements" to a union under Section 8(a)(5) of the National Labor Relations Act (NLRA). Specifically, that Board is seeking briefs on two issues:

  1. Whether the NLRB should continue to follow its rule that an employer has no duty to furnish a union with witness statements the employer obtains during the course of investigating employee misconduct; and
  2. If the statement in question is not a "witness statement," whether it is protected from disclosure as attorney work product.

Interested parties have until April 1, 2011, to file their amicus briefs.

Current State of the Law

Employers have a general obligation to provide a union, upon request, with certain information. This includes the duty to provide the union, upon request, the names of witnesses to an incident for which an employee was disciplined. However, the NLRB has long held that an employer has no duty to provide a union with witness statements the employer obtains while investigating employee misconduct. This rule was established more than 30 years ago in Anheuser-Busch, Inc., 237 NLRB 982 (1978), and was intended to encourage employee participation during company investigations and to protect witnesses from union bullying and intimidation.

The Board is now seeking to chip away at this rule and re-define what constitutes a "witness statement." The Board appears to want to take the position that not all statements an employer obtains while investigating employee misconduct constitute "witness statements." In the case prompting this notice, the Administrative Law Judge (ALJ), applying a case addressing customer witness statements, said the NLRA did not protect an employee witness' statement because the company did not assure her it would remain confidential. The ALJ also found this statement unprotected by the attorney work product privilege because the union had not yet filed a grievance when the statement was obtained. The Board did not adopt the ALJ's rulings, but rather, has opened up the entire subject of whether witness statements must be disclosed and, if so, under what circumstances. Therefore, the Board likely will overrule the blanket protection of witness statements from disclosure.

Likely Effects of Changing the Witness Statement Rule

Should the NLRB succeed in altering the Anheuser-Busch rule, it will likely have some serious consequences for employers conducting investigations. For example:

  • Witnesses may be less inclined to participate in company investigations for fear they may be subject to union bullying, intimidation or retaliation;
  • Even if witnesses do cooperate, their statements will likely be vague and unhelpful; and
  • Unions will have an incentive to file more meritless grievances knowing that employers cannot collect enough information to win at arbitration.

Unions will likely file amicus briefs in support of this rule change, as it signifies an important, pro-union shift in NLRB law. Stay tuned for more updates, as more pro-employer rules will surely come under fire.