The NLRB has issued an invitation to file briefs (board decision) to help the agency define the scope of an employer’s duty to provide to the union “witness statements” it obtains in the course of an investigation.

Until recently, the Board’s Anheuser-Busch, Inc., 237 NLRB 982, 985 (1978) decision was one of the few NLRB cases that could be viewed as favorable to employers.  It held that an employer was not required to provide a union with written statements of employee witnesses collected in investigations.  This issue frequently arises in the health care industry and investigations into patient or consumer abuse.  Under Anheuser-Busch, supra, the employer did not have to provide the statements collected by an investigator prior to a disciplinary arbitration.  The NLRB is now considering whether or not to abandon its position in Anheuser-Busch, supra, and require employers to provide the union with witness statements.  This may have a chilling effect on investigations.

This issue arose in Stephens Media, LLC, a case recently decided by the Board. In Stephens, supra., the Board found that the employer had committed unfair labor practices related to the termination of an employee for insubordination.  Among other things, the Board found that the employer had violated Sections 8(a)(5) and (1) of the National Labor Relations Act by refusing to provide or delaying the provision of relevant information requested by the union. In deciding the case, however, the Board separated the question of whether the employer had a duty to provide the union with statements it obtained during the course of its investigation of the employee’s alleged misconduct. In discussing the reasons for severing this issue from the other ULP charges, the NLRB explained that: Board precedent establishes that the duty to furnish information “does not encompass the duty to furnish witness statements themselves.” Fleming Cos., 332 NLRB 1086, 1087 (2000), quoting Anheuser-Busch, Inc., 237 NLRB 982, 985 (1978). Compare Northern Indiana Public Service Co., 347 NLRB 210 (2006) (employer notes of investigatory interviews of employees held confidential). This case illustrates, however, that Board precedent does not clearly define the scope of the category of “witness statements.” This case also illustrates that the Board’s existing jurisprudence may require the parties as well as judges and the Board to perform two levels of analysis to determine whether there is a duty to provide a statement: first asking if the statement is a witness statement under Fleming and Anheuser-Busch and then, if the statement is not so classified, asking if it is nevertheless attorney work product.In its invitation, the Board asks whether it should continue to adhere to its decision in Anheuser-Busch, Inc., 237 NLRB 982, 985 (1978) that an employer’s duty to furnish information under Section 8(a)(5) of the Act does not encompass the duty to furnish witness statements. If commenters believe that it should not rely on this precedent, the Board seeks input on the standard that should be applied to requests for such statements or any other statements that an employer obtains in the course of its investigation into alleged employee misconduct. Also, if the statements at issue are not witness statements, the Board asks whether such documents are “nevertheless [] privileged from disclosure to the union as attorney work product.” Interested parties may electronically submit briefs no longer than 25 pages in length to the Board on or before April 1, 2011.