When employers investigate workplace misconduct, they often interview employees. Indeed, some investigations begin because of information provided by an employee. To help document its investigation, the employer will sometimes ask employees to provide written statements about the misconduct of other employees, and the employer might promise confidentiality of those statements. It is unfortunate, but also true, that employees can be subject to harassment and intimidation based on their cooperation with the employer in the investigation of workplace misconduct, including providing written statements. 

Recognizing this unfortunate fact, in 1978, the NLRB established a “bright line” rule that protected employees’ witness statements from disclosure to a union representing the employer’s employees. Anheuser-Busch, 237 N.L.R.B. 982 (1978). Thus, for the last 34 years, when a union filed a grievance over discipline given to an employee, the employer might have to provide the union with the name and position title of employees whom the employer interviewed during its investigation, but not the employees’ statements. The NLRB has explained over the years that this rule properly balances the interests of the employer and of the union in situations involving the discipline of an employee for workplace misconduct.

Last month, the NLRB erased the 34-year-old, bright line rule of Anheuser-Busch. In its place, the NLRB substituted a case-by-case “balancing” test regarding the disclosure of witness statements. In American Baptist Homes, 359 N.L.R.B. No. 46 (2012), the NLRB held that the party asserting that a witness statement should remain confidential (almost always the employer) must prove that its interest in confidentiality outweighs the union’s interest in having sufficient information to process its grievance under the applicable union contract. Rather than extending the Anheuser-Busch rule to the names of employees, however, the NLRB majority used the fact that employee names are subject to disclosure to support its conclusion that any witness statements from those employees should likewise be given to the union.

When the employer’s confidentiality interest will prevail over the union’s interest is murky at best. The majority cited some prior NLRB decisions suggesting that the employer’s confidentiality interest might be stronger in cases where the disciplinary infraction being investigated is more severe. For example, misconduct involving drug use might justify confidentiality, but misconduct involving “petty theft” may not. Employers, and in particular the labor professionals who work for them, will be left to sort this out in the future.

Then-Member Hayes (R) dissented from the majority’s decision. In one of the last dissents he wrote before leaving the NLRB, Member Hayes roundly criticized the majority for departing from Anheuser-Busch. He cited the pressure employee witnesses may face to change their testimony, or not testify at all, if their statements are revealed before an arbitration hearing. He also noted that the old rule protected employees who participated in workplace investigations from coercion, intimidation and retaliation by the union or coworkers, while protecting the union’s interest by permitting, in some cases, the disclosure of the employee’s name. Finally, he criticized the replacement of the certainty of a bright line rule for the doubt and “case-by-case guessing game” that arises from the majority’s balancing test. 

The case has significant implications for the labor professional in unionized workplace:

  • Expect unions to make information requests for witness statements on a more frequent basis;
  • The labor arbitration process, traditionally one with no prehearing discovery, now has a quasi-discovery component to it;
  • Rather than quick and efficient resolution of disputes over disciplinary actions, disputes over production of witness statements could lead to protracted NLRB proceedings;
  • Union employees will likely become more reluctant to report work rule violations or cooperate with an employer’s investigation, and as a consequence, employers may find it harder to enforce rules against misconduct.

* Special thanks to my partner, Al Kinzer, for his comments on a draft of this post.