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January 7, 2013

NLRB Overturns Rule Preventing Disclosure of Witness Statements to Unions During Information Requests Concerning Employee Discipline

On December 15, 2012, the National Labor Relations Board (the “Board”)overruled its long-standing rule exempting witness statements from the material that an employer must provide to a union in response to an information request during a disciplinary grievance investigation. For the past 35 years, the Board followed a bright-line rule, first established in Anheuser-Busch, Inc., 237 NLRB 982 (1978), which categorically exempted witness statements from pre-arbitration disclosure to a union.  The purpose of that rule was to prevent potential harassment, intimidation or coercion of witnesses. Without explaining how an employer may now adequately protect confidentiality and ensure against retaliation, the new decision (American Baptist Homes of the West d/b/a Piedmont Gardens, 32-CA-063475 (“Piedmont Gardens”)) holds that witness statements generally must be provided, along with all other information relevant to a union’s investigation of a grievance.

Under the Piedmont Gardens rule, if an employer refuses to provide a witness statement and the union files an unfair labor practice charge, the Board will balance the confidentiality interests against the union’s need for the information. Under Piedmont Gardens, the employer will bear the burden of proving that a legitimate and substantial confidentiality interest exists, and that it outweighs the union’s need for the information.  The Board’s decision casts doubt on other decisions such as Mobil Oil Corp., 303 NLRB 780 (1991), where an employer did not disclose the identity of a person who reported drug use by fellow employees and, instead, provided a redacted summary of the informant’s statement.  

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We invite your questions regarding efforts to preserve valid confidentiality concerns when responding to union information requests.