Last year, we notified you here that the National Labor Relations Board will now consider a general employer rule requiring confidentiality during an internal investigation into an employee complaint to be an unfair labor practice. The Board has now taken things even further.
In American Baptist Homes of the West d/b/a Piedmont Gardens, the NLRB overruled a longstanding, bright-line rule that precluded union access to witness statements obtained by unionized employers during workplace investigations of employee misconduct. For approximately 34 years, the Board consistently held, pursuant to its decision in Anheuser-Busch, Inc., that witness statements are automatically protected from disclosure. However, the present Board has shunned the Anheuser-Busch rule, adopting instead a balancing test that generally makes witness statements accessible to union leaders upon request.
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