As Ron Meisburg reported last week, the National Labor Relations Board recently announced in Hawaii Tribune-Herald, 356 N.L.R.B. No. 63 (2011) that it might reconsider its long-standing precedent that employers are not required to provide “witness statements” obtained in the course of a disciplinary investigation, to the unions representing their employees.  

As we anticipated, following its recent trend before it overturns long-standing precedent, the Board has now invited all interested parties to submit briefs setting forth their position on this important issue.  The Board has specifically requested positions on whether it should continue to adhere to its witness statement precedent, and even if a statement is not a “witness statement” what standard should be used to determine if a statement gathered during an investigation should be protected from disclosure because the statement may be attorney-work product. 

The Board’s ultimate decision on the scope of witness statements which might have to be furnished by employers could have far reaching implications beyond simple grievance arbitrations.   Witness statements frequently are obtained as part of employer internal investigations into allegations of all forms of workplace misconduct, including harassment and discrimination claims.  Thus, a holding that witness statements must be turned over to a union under the National Labor Relations Act could impact an employer’s ability to protect the results of those confidential internal investigations from disclosure prior to litigation. 

Amicus briefs, which must be filed electronically on or before April 1, 2011, may not exceed 25 pages.