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NLRB Rescinds Protection for Witness Statements: How to respond to the latest obstacle to preventing workplace misconduct

The National Labor Relations Board continues to make it more difficult for union employers to prevent workplace misconduct. In a recent decision, the NLRB overturned established law and held that that the National Labor Relations Act no longer categorically prevents union employers from having to disclose employees’ confidential witness statements. Although this decision will make life more difficult for union employers seeking evidence to effect disciplinary decisions, there are some steps you can take to mitigate its impact.

The case arose after several union-represented nurses witnessed one of their colleagues sleeping on the job. Two of these witnesses reported what they observed to their employer, and the employer asked them to put their observations in writing, promising them their statements would remain confidential. In reliance on this promise, the witnesses provided written statements. The employer then reviewed them and, relying upon them, discharged the employee who had been sleeping.

The union responded by filing a grievance and requesting copies of the witness statements. The employer refused to disclose the statements, reasoning that it had assured the witnesses they would remain confidential. At the time, the law firmly supported the employer’s position, as the NLRB had ruled in Anheuser-Busch in 1978 that the NLRA categorically protected such witness statements. The NLRB reached this same conclusion in myriad other cases since then.

Proving that not even established precedent is safe, the “Obama Board” took this opportunity to overrule Anheuser-Busch and rescind the categorical protection for confidential witness statements. The NLRB reasoned that prior NLRB panels had been mistaken, because the NLRA does not afford categorical protection to any other types of information. Although previous panels of the NLRB had found witness statements to be fundamentally different from these other types of information (because employees who provide witness statements are vulnerable to harm and coercion), the current NLRB disagreed. Rather, it decided to treat witness statements the same as social security numbers, payroll records, and other types of potentially confidential information, i.e., by requiring union employers to disclose them unless they can prove their confidentiality interests outweigh unions’ needs.

Nevertheless, there are some steps you can take to help protect witness statements and keep this decision from impairing disciplinary investigations. First, the NLRB’s decision did not overturn the attorney-client privilege, which also protects some types of witness statements. This privilege covers any information you obtain at the request of your attorney in anticipation of arbitration, a ULP proceeding, or other types of litigation. An experienced labor attorney can help you structure your investigatory procedures to avail yourself of this privilege.

Additionally, you can still withhold witness statements if you adequately prove you need to do so to protect legitimate confidentiality interests. You should note, though, that the current Obama Board likely will scrutinize such claims closely. If you intend to invoke this defense, you should obtain and document any facts you can to help show you need to keep witnesses’ statements confidential. For example, you would improve your chances of prevailing if an employee signed a statement indicating that she would be reluctant to assist with investigations in the future if her statements were disclosed. You also would significantly help your cause if you could produce evidence that other witnesses have been harassed or coerced for providing statements. Unfortunately, even if you made such a showing, the NLRB’s new decision would still require you to bargain with the union to accommodate its interests in some other way. While it is possible to do this without adversely impacting your position, you will need to act carefully in order to reach such a result.

Altogether, this is yet another decision by the NLRB that could significantly assist union-represented employees in discipline proceedings. As the NLRB has continued to issue these types of decisions, it has become increasingly important to exercise care and prudence in order to protect your right to prevent misconduct in the workplace.

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