In yet another reversal of longstanding, bright-line precedent, the National Labor Relations Board (NLRB or Board) has changed dramatically the rule applicable to employers in responding to union information requests seeking employee witness statements collected during a workplace investigation. Section 8(a)(5) of the National Labor Relations Act (Act) creates a general obligation on unionized employers to furnish to a union, upon request, “relevant” information needed by the union to properly exercise their duties as a collective bargaining representative. In evaluating such requests, the NLRB applies a liberal discovery-type standard and requires production of the requested information if the information is merely of “probable” or “potential” relevance.

Since 1978, however, the Board has followed a clear categorical exemption for employee witness statements. In Anheuser-Busch, Inc., 237 NLRB 982 (1978), noting that witness statements are “fundamentally different” from other types of information that unions typically seek, the Board held that “the general obligation to honor requests for information … does not encompass witness statements.” As support for that broad exception, the Board cited both the concern that witnesses might be intimidated if their statements were made public and, more fundamentally, that potential witnesses might be reluctant to give statements in the first place without assurances of confidentiality. Thus, the Board held that “requiring either party to a collective bargaining relationship to furnish witness statements to the other would diminish rather than foster the integrity of the grievance and arbitration process.”

After following that logic for nearly 35 years, on December 15, 2012, the current Board reversed direction in American Baptist Homes of the West d/b/a Piedmont Gardens, 359 NLRB No. 46 (2012), finding the longstanding rationale articulated in Anheuser-Bush to be “flawed” and thus, overruling that decision. In Piedmont Gardens, the union alleged a violation of sections 8(a)(1) and 8(a)(5) of the Act based on the employer’s refusal to provide the union with the names, job titles, and written statements provided by three employees during the investigation of a co-worker’s misconduct (sleeping on the job) which led to the firing of that co-worker. The Board agreed with the administrative law judge (ALJ) that the employer’s failure to produce the name and job title of each witness violated the Act even though the employer generally considered such information confidential. Since the ALJ had found the refusal to produce the witness statements to be lawful under Anheuser-Bush, the Board majority reversed the ALJ articulating the following new standard.

Rejecting the premise in Anheuser-Bush that witness statements are “fundamentally different,” the Board said that “if relevant and necessary to the union’s representative duties,” then the witness statements are “at bottom, fundamentally the same for purposes of the Act.” The Board noted that this was particularly true in the grievance context when the union has to determine whether to process a grievance. Thus, the majority found “no basis … to assume that all witness statements, no matter the circumstances, warrant exemption from disclosure.” Rather, if the union makes a timely request for witness statements that are “necessary and relevant,” going forward the employer can lawfully refuse to produce those statements only if the employer can meet “the burden of proving that a legitimate and substantial confidentiality interest exists, and that it outweighs the requesting party’s need for the information.” See Detroit Edison Co. v. NLRB, 440 U.S. 301, 318 (1979).

In other words, the bright line rule in Anheuser-Bush has been replaced by the imprecision of the Detroit Edison case-by-case “balancing of interests test,” in which the Board will consider “whether the information withheld is sensitive or confidential based on the specific facts of each case.” While the Board left open the potential that witness statements (and witness names for that matter) can still be withheld based on legitimate concerns about confidentiality or retaliation—“nothing in our decision today precludes appropriate consideration of those issues”—that standard will result in a union challenge in virtually every case. As then Board Member Hayes predicted in his dissent, this is likely to plunge what is otherwise a relatively efficient grievance-arbitration process into protracted litigation before the NLRB during which “the private grievance arbitration machinery will often grind to a halt awaiting a final Board decision.” Of greater concern, the Board will resolve that dispute using a highly subjective analysis which, as Member Hayes said, “substitutes doubt for certainty.” Finally, if a party objects to producing a witness statement based on confidentiality grounds, they cannot simply refuse to provide the information but “must raise its confidentiality concerns in a timely manner and seek an accommodation from the other party” (such as providing a summary of the facts contained in the statements and/or generally bargaining about alternatives to full and unlimited production).

In recognition that Piedmont Gardens constituted such a significant departure from past precedent, the Board did not apply this new rule retroactively. Instead, they followed Anheuser-Bush, upholding the employer’s refusal to provide two of three witness statements. With respect to the third statement, however, the Board found that it was not provided by the employee with “an assurance of confidentiality” from the employer and thus, would not be protected even under Anheuser-Bush. That was consistent with the decision issued by the Board just one day earlier (December 14, 2012), in Hawaii Tribune-Herald, 359 NLRB No. 39 (2012). In that decision, the Board restated that under Anheuser-Bush, to be protected from production there must be a witness statement involved (i.e. a document reviewed and adopted by the employee) and the statement must be given with assurance of confidentiality from the employer.

So what is the practical impact for employers going forward?

• Unionized employers should expect more information requests from unions seeking copies of witness statements. Indeed, this is likely to become a standing request in each arbitration case.
• In most cases, we suspect that employers will decide to produce those witness statements recognizing that failure to do so is almost certain to result in the filing of an unfair labor practice charge and a protracted legal battle.
• Should an employer believe that legitimate concerns about confidentiality exist, before refusing to produce such witness statements, the employer will want to conduct an analysis under the Detroit Edison balancing test—that is, does the legitimate and substantial confidentiality interest outweigh the union’s need for the information?
• If an employer refuses to produce the witness statements on confidentiality grounds, the employer must still contact the union in an effort to negotiate a compromise.
• While we think that employers should continue to offer employee witnesses confidentiality, the reality is that an employer will no longer be able to offer that protection with absolute certainty. Therefore, employers may want to modify how they articulate the protection—“we will do our best to maintain the confidentiality of your statement during the course of this investigation but may be required by law to produce the statement to the union if they make a timely and appropriate request.”
• As employees become aware of this potential, some are likely to be less willing to participate in workplace investigations. Likewise, the quality of witness statements are likely to be impacted and testimony could conceivably be altered as employees may feel pressure from co-workers and the union to moderate their recollection. Employers will need to take this into consideration in making disciplinary decisions and in preparing for arbitrations.
• Lastly, it will be more difficult to insulate witnesses from pressure, intimidation, harassment, and retaliation since their statements are likely to be provided to the union.

C. Thomas (Tom) Davis is a shareholder in the Nashville office of Ogletree Deakins, and he chairs the firm’s Traditional Labor Relations Practice Group.