NLRB Abandons 37 Years of Precedent Concerning Workplace Investigations

Written by Scott M. Wich

In 1978, the National Labor Relations Board (“NLRB”) established a rule that employers were not required to disclose, in response to a union information request, confidential witness statements they collected in the course of an investigation. The rule is referred to as the Anheuser-Busch rule, named after the case that established it.Recently, in American Baptist Homes, the NLRB rejected this rule.As a result, how an employer is able to conduct investigations has been thrust into a shadow of uncertainty.

In American Baptist Homes, the NLRB issued a 3-2 decision that reversed the longstanding Anheuser-Busch rule.The NLRB ruled that witness statements withheld from a union’s information request on the basis of confidentiality will now be subject to a balancing test.Under the new rule, an employer seeking to prevent disclosure of a confidential witness statement must first establish whether “witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated [or] there is a need to prevent a cover up.”Upon such a showing, the NLRB will exercise a balancing test to determine whether those concerns are outweighed by the union’s need for the information. If so, the NLRB will consider whether an accommodation was sought to allow for the disclosure of the statements while protecting the confidentiality of the information.

In a stinging dissent, Board Member Philip Miscimarra opined that the new confidentiality standard “will never be satisfied [by an employer] except in extremely narrow, infrequent circumstances” and commented that the decision to abandon the Anheuser-Busch rule would substantially undermine workplace investigations.

An appeal to the courts is likely.In the meantime, employers are well advised to review their investigation procedures and take steps that will improve the ability to maintain the confidentiality of witness statements.If you have any questions concerning workplace investigations, please feel free to contact the author of this article or your Clifton Budd & DeMaria attorney.

About the Author
Scott M. Wich
Partner
Mr. Wich is a regional attorney focusing on providing local, regional and national clients with services concerning management-related labor and...
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