Norris, McLaughlin & Marcus

The NLRB Rules Witness Statements Are Not Automatically Confidential

On December 15, 2012, in American Baptist Homes and Service Employees International Union, the National Labor Relations Board (“NLRB”) held that employers may have to disclose witness statements obtained as a result of a workplace investigation to a union upon request for such documents if the statements are necessary and relevant for the union to perform its duties. To determine when witness statements must be disclosed, the NLRB has adopted the traditional balancing test generally applied to a union’s request for information: does the employer’s interest concerning confidentiality, witness coercion, harassment or retaliation outweigh the union’s need for the information. Prior to American Baptist Homes, employers generally were not required to turn over witness statements obtained during a workplace investigation. Now, however, employers must weigh the factors above to determine if a witness statement should be disclosed to a union upon request. As one might imagine, this subjective determination puts employers in a predicament. Indeed, the failure to disclose relevant statements could result in an NLRB charge, but the disclosure of the statements could have adverse consequences on future investigations or even ongoing parallel litigation. As a result of this ruling, Employers will certainly face more information requests from unions targeted at witness statements. Accordingly, during a workplace investigation involving unionized employees, employers must now consider whether collecting witness statements is beneficial to the Company and, if the statements are collected, what information should be included in the statements. Employers can increase the chance that witness statements will be protected by documenting specific concerns when the statements are initially collected such as confidentiality, intimidation, harassment or retaliation, which may justify not disclosing an individual’s witness statement down the line.

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