NLRB Backs Overruling of Anheuser-Busch, Expands Union Right to Witness Statements

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By Lawrence E. Dubé

June 29 — Overruling a long-standing precedent, the National Labor Relations Board June 26 held that employers have no blanket right to deny union requests for access to witness statements that are secured during a company investigation.

The board held in Anheuser-Busch Inc., 237 N.L.R.B. 982, 99 LRRM 1174 (1978), that witness statements were distinguishable from other information that a unionized employer must provide to a bargaining agent. NLRB Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Lauren McFerran disagreed, and said union requests for relevant information should be granted unless an employer can demonstrate a substantial interest in keeping them confidential.

Members Philip A. Miscimarra and Harry I. Johnson dissented from the decision to overrule Anheuser-Busch. Both said the 1978 ruling has protected the integrity of workplace investigations and should not be rejected by the board.

Earlier Board Ruling Was Set Aside

The new decision represents the NLRB's second attempt to overrule Anheuser-Busch.

In December 2012, Pearce and then-Members Richard F. Griffin and Sharon Block decided that American Baptist Homes of the West, which operates the Piedmont Gardens continuing care facility, had an obligation to turn over witness statements requested by Service Employees International Union, United Healthcare Workers-West, which represents employees at the facility (359 N.L.R.B. No. 46, 194 LRRM 1406 (2012)). Then-Member Brian E. Hayes dissented.

However, the board set aside that ruling after the U.S. Supreme Court held in NLRB v. Noel Canning, 134 S. Ct. 2550, 199 LRRM 3685 (2014) that President Obama's January 2012 recess appointments to the NLRB, including those of Griffin and Block, were unconstitutional.

The current board considered the case de novo, and ruled 3-2 that Anheuser-Busch should be overruled.

General Duty to Furnish Relevant Information Cited

Citing NLRB v. Acme Industrial Co., 385 U.S. 432, 64 LRRM 2069 (1967), the board said the National Labor Relations Act gives a unionized employer a general obligation to provide information relevant to a union's performance of its bargaining duties, including information the union needs to reach a decision on whether or not to pursue a grievance to arbitration.

Pearce, Hirozawa, and McFerran wrote Anheuser-Busch “created a broad, right line exception” for witness statements but “we are not persuaded that witness statements are so fundamentally different from other types of information that a blanket exemption from disclosure is warranted.”

The board majority acknowledged that there may be some cases in which an employer has legitimate and substantial interests that “must be accommodated,” such as avoiding witness intimidation or harassment. However, they stressed, “there is no basis for concluding that all witness statements, no matter the circumstances, warrant exemption from disclosure.”

New Rule Will Apply Prospectively

As it did in the 2012 decision, the board acknowledged that overruling Anheuser-Busch is a departure from precedent. Piedmont Gardens relied on that precedent in denying the union access to witness statements, and the board said the employer's conduct was “unquestionably lawful at the time.”

The board said it will apply its new standard prospectively. “[I]n the present case and all other cases where the employer's refusal to provide requested witness statements occurred before the date of this decision,” the board members wrote, “the Board shall apply Anheuser-Busch in evaluating the lawfulness of the employer's conduct.”

In the future, however, the board said it will require employer production of witness statements on the same basis that it now requires the production of witness names—“if the requested information is relevant, the party asserting the confidentiality defense has the burden of proving that it has a legitimate and substantial confidentiality interest in the information, and that it outweighs the requesting party's need for the information.”

Applying the 1978 standard to Piedmont Garden's conduct, the board found the employer lawfully withheld several statements but violated its duty to bargain under the NLRA by refusing to give the union a statement from one employee who gave a statement in the courts of her job duties without any assurance of confidentiality from the employer.

Dissenters See Negative Effect on Investigations

Dissenting from the overruling of Anheuser-Busch, Miscimarra said “[w]hen employees step forward to provide information that may involve a coworker's misconduct, there is little question that they risk coercion, intimidation, harassment, and retaliation, and this risk is especially high if the employer is required to disclose their witness statements to a union.”

By overruling the 1978 precedent, Miscimarra said, “the Board is substantially undermining workforce investigations, to the detriment of employers and employees alike.” He warned the “predictable result” of the board's decision will be that fewer employees will be willing to provide witness statements, and employers will be less effective in conducting investigations that are often critical to maintaining safe and legally compliant workplaces.

Johnson said “strong confidentiality concerns are inherent to all internal employer investigations into employee misconduct,”

Compelling employers to surrender witness statements to union representatives will “undermine an employer's ability to investigate claims of workplace violence, harassment, theft, drug and alcohol use, and other forms of serious misconduct in the workplace,” Johnson wrote.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/NLRB_Board_Decision_American_Baptist_Homes_of_the_West_dba_Piedmo.