NLRB Decision Makes Getting "Confidential" Witness Statements Easier

In a victory for workers and their Unions, the NLRB issued a decision which strengthens Unions’ access to witness statements during the course of investigating grievances.                

SEIU-UHW West filed a charge against a nursing home, after the nursing home refused to give the names and statements of the witnesses it had gathered to support the nursing home’s termination of a Union member.  Under Anheuser-Busch, 237 NLRB 982 (1978), employers did not have an obligation to produce witness statements to Unions, even if those statements were the basis of discipline of a Union employee. 

However, in this new decision, the NLRB overruled Anheuser-Busch, and held that prior to withholding witness statements from Unions, employers must weigh the interests of the confidentiality of the witnesses against a Union’s right to information.  This means that if an employer refuses to produce witness statements to Unions, the employer has the burden of showing that the confidentiality interest outweighs the interest of the Union in obtaining the statements.  Not only must an employer raise the issue of confidentiality when refusing to provide such information, but it must also seek an accommodation that would protect the confidentiality interest of the witnesses.

This means that from now on, Unions can always demand confidential witness statements, and if the employer refuses to provide them, a ULP can be filed at the NLRB, and the burden will be on the employer to try to protect the confidentiality of the statements.

The NLRB decision can be found here by clicking on the following link:  http://mynlrb.nlrb.gov/link/document.aspx/09031d4580e8da97

By Yuri Gottesman

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