Employers who obtain witness statements in anticipation of litigation or grievances often contend the statements are exempt from the duty to provide information to the union, relying on the NLRB's 1978 decision in Anheuser-Busch, Inc.[1] The NLRB recently overruled that decision.  It announced that in the future it would apply a balancing test if the employer argues it has confidentiality interests that justify not providing the statement to the union[2]

American Baptist involved a nursing home employee fired for sleeping on the job. The employer had three employee statements about the event.  It had asked for two of those and had promised confidentiality to the employees providing them; the third had been submitted voluntarily without a request.  The employer refused to provide any of the statements to the union, relying on the exemption for statements in Anheuser-Busch.

The Board decided that the "bright line" rule of Anheuser-Busch was not necessary and its justification was flawed. Instead, it adopted the balancing of interests test announced by the U.S. Supreme Court in Detroit Edison v. NLRB[3] Under that test, if the union establishes that the witness statement is relevant, then the Board balances the union's need for the information against any legitimate and substantial confidentiality interests established by the employer.  The employer has the burden to establish those interests, and has a duty to seek an accommodation with the union about the information requested.  The Board will consider the specific facts in each case to determine whether the information withheld is confidential and sensitive.  

Recognizing this is a significant change in the law, the Board decided that this new rule would only apply to conduct that takes place after its decision was announced.  Employers who want to assert confidentiality interests should be prepared to show a risk that witnesses will be intimidated or harassed, or that witnesses will be reluctant to provide statements for fear of disclosure.  The nature of the underlying conduct can also be considered in determining if the information is sensitive or confidential.  Information supporting this determination can be included in the statements themselves.  Employers should also comply with requirements under other laws to protect witness statements from disclosure. 

Employers who wish to keep statements confidential should tell witnesses that their statements are intended to be confidential and state this in the document.  (Warning:  but don't interfere with employees' Section 7 rights by prohibiting them from discussing terms and conditions of employment.)  Mark statements at the time they are created with a note that they were created in anticipation of litigation or a grievance, and be able to explain the litigation or dispute anticipated.  Finally, remember to comply with Johnnie's Poultry rules: (1) explain the purpose of the interview, (2) explain that the interview is voluntary, and (3) assure there will be no reprisal for participating or not.

[1]Anheuser-Busch, Inc., 237 NLRB 982 (1978).

[2]American Baptist Homes of the West, 359 NLRB No. 46 (Dec.15, 2012).

[3]Detroit Edison v. NLRB, 440 U.S. 301 (1979).