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The NLRB Increases A Union's Right to Witness Statements

By Kurt M. Graham / Jan 08, 2013

The National Labor Relations Board ("NLRB" or "Board") has held that an employer is obligated to provide witness statements to a union representing a disciplined employee where the union's need for the requested statements outweigh the employer's confidentiality interests.  The Board's decision in American Baptist Homes of the West , 359 NLRB No 46 (2012) overrules Anheuser-Busch , Inc. , 237 NLRB 982 (1978) and continues the Board's trend of overruling longstanding precedent and issuing decisions favoring the interests of organized labor.  The prior rule in Anheuser-Busch was that employers were not obligated to release witness statements to the union that were obtained during an investigation into a bargaining unit employee's alleged misconduct.  The rationale for the rule was to avoid possible attempts to coerce or intimidate witnesses who had given statements in an effort to make them change their testimony, or not testify at all.

American Baptist Homes of the West involved an employer's investigation into whether a certified nursing assistant was sleeping on duty.  The employee was terminated after the employer obtained two witness statements from co-workers confirming she was asleep while on the job.  The union representing the terminated employee requested "any and all statements that were used as part of your investigation" in conjunction with its grievance protesting her termination.  The employer refused to provide any witness statements to the union citing the Anheuser-Busch rule.  The union then filed an unfair labor practice charge alleging a failure to provide information relevant to its need to represent the terminated employee.  A NLRB Administrative Law Judge (ALJ) upheld the employer's refusal.

The Board reversed the ALJ stating that "the rationale of Anheuser-Busch is flawed" and the more appropriate analysis for when a union requests witness statements is to evaluate whether the requested information is necessary and relevant to the union's representational role. If an employer asserts that the requested information is confidential, the Board balances the union's need for the statements against any legitimate and substantial confidentiality interest that the employer may have, such as an apparent threat to employee or public safety.  Even if an employer's confidentiality interests outweighs the union's need for a statement, it may not simply refuse to furnish a requested statement, but must raise its confidentiality concerns in a timely manner and seek an accommodation from the union.  The Board determined it will apply its new standard prospectively.

Aftermath of American Baptist Homes of the West

It is more likely that employers who receive information requests from a union seeking witness statements resulting from their investigation into the potential discipline of a bargaining unit employee will have to furnish such statements to the union.  A simple blanket refusal to provide the statements because they are not subject to disclosure is no longer acceptable.  An employer must instead evaluate the nature and relevance of the statement and, assuming the statement is relevant to the union's representational interests, determine whether there is a legitimate and substantial confidentiality interest that applies.  In the past, the Board has found that statements from employee informants about suspected employee drug use was confidential.  In the event a confidentiality interest exists, however, the employer is still obligated to discuss a possible accommodation with the union instead of simply refusing to furnish the requested statement. Employers who receive requests for witness statements by their unions in the future will need to follow the Board's new rules while responding.

If you have any questions regarding American Baptist Homes of the West and how it may impact your workplace, please contact Kurt M. Graham at (616) 608-1144, or another member of the Clark Hill Labor and Employment Practice Group.