Labor and Employment

Action Item: The National Labor Relations Board (NLRB) recently held in American Baptist Homes of the West d/b/a Piedmont Gardens that there is no longer a blanket exemption for witness statements from an employer’s Section 8(a)(5) “general obligation to furnish information” to unions.  362 N.L.R.B. No. 139, 2015 BL 205412 (June 26, 2015).  This decision overrules longstanding Board precedent, and employers must be aware of the potential new implications of taking witness statements.

In American Baptist Homes of the West, the Board overruled the almost 37-year-old precedent articulated in Anheuser-Busch Inc., 237 N.L.R.B. 982, 99 LRRM 1174 (1978).  Anheuser-Bush created a bright line rule that employers did not have a “duty to furnish witness statements” to a union.  The American Baptist Homes decision held that “there is no basis for concluding that all witness statements, no matter what the circumstances, warrant exemption from disclosure.”  The Board instructed that the standard to be applied to witness statements is the Detroit Edison balancing test.  See Detroit Edison, 440 U.S. 301 (1979).  The Board in American Baptist Homes explained that “if the requested information is relevant, the party asserting the confidentiality defense has the burden of proving that it has a legitimate and substantial confidentiality interest in the information, and that it outweighs the requesting party’s need for the information.”  This new rule will be applied prospectively to cases in which an “employer’s refusal to provide requested witness statements” occurred after the date of the American Baptist Homes decision. 

The Board’s decision was accompanied by two dissenting opinions. Dissenting Member Miscimarra critiqued that “the majority makes it impossible for employers to promise employee witnesses that their statements will remain confidential.”  Further, “[t]he predicable result will be far fewer employees who are willing to provide witness statements, with a corresponding loss of investigative effectiveness and consequent weakening of employers’ ability to provide a safe work place . . . .” Applying similar logic, Member Johnson dissented that “[c]ompelling the production of witness statements will undermine an employer’s ability to investigate claims of workplace violence, harassment, theft, drug and alcohol use, and other forms of serious misconduct in the workplace.”