United States: Disclosure Danger: Employers Still Stuck With Nlrb's Witness Statement Disclosure Standard

The U.S. Court of Appeals for the District of Columbia rejected the chance yesterday to revive long-held precedent which for many years had protected employer witness statements from disclosure to unions before an arbitration hearing. The court instead ruled that the employer in the center of the battle did not have standing to challenge the National Labor Relations Board's (NLRB's) far-reaching 2015 decision in American Baptist Homes of the West dba Piedmont Gardens, snuffing out the current litigation and ending employer hopes of an ultimate victory. Although it did not affirmatively adopt the NLRB's standard, the court's ruling essentially leaves intact a new standard whereby witness statements might have to be turned over to unions before the witness testifies.

The June 6 ruling is a disappointing one for unionized employers. It leaves in place a troubling decision that changes the way employers conduct workplace investigations in a union environment and places management representatives in a tricky situation. While it is possible that a reformed Labor Board installed by the Trump administration will one day reverse the current standard and resurrect the decades-old precedent which had protected witness statements from disclosure, it is not possible at this time to predict whether and when such a day might arrive. In the meantime, there are some specific steps we recommend each employer take in order to comply with this standard, as outlined at the conclusion of this article (American Baptist Homes of the West v. NLRB).

Background: The Tradition Protecting Employer-Obtained Witness Statements

Since 1978, the National Labor Relations Board (NLRB) had treated witness statements as exempt from an employer's general duty to furnish information to unions before arbitration. The NLRB first articulated this rule in the 1978 Anheuser-Busch, Inc. case, where the Board held that the general duty to furnish information "does not encompass the duty to furnish witness statements themselves." 

After Anheuser-Busch, the Board generally required an employer to provide summaries of witness statements, but under that precedent the employer had no obligation to provide the actual witness statements to the union. This standard helped protect the integrity of employer investigations and to protect witnesses from intimidation or retaliation, particularly protecting the employees who provided incriminating information against fellow bargaining unit members. But in 2015, the NLRB set this standard in its sights with an eye towards liberalizing disclosure requirements.

Sleeping On The Job: History Of The American Baptist Homes Case

In the American Baptist Homes case, the employer was advised that a unionized employee might have been sleeping on the job, as witnessed by fellow employees who also belonged to the union. The employer requested that two witnesses voluntarily provide a statement outlining their observations, and assured them that their statements would remain confidential. Another employee voluntarily provided a separate witness statement after learning her coworkers had been promised complete confidentiality. 

After completing its investigation, the employer terminated the sleeping employee, and the union grieved and requested the three witnesses' names, job titles, and copies of the statements. Citing Anheuser-Busch, the employer refused to provide any of the information. The union filed an unfair labor practice charge based on the refusal to provide the requested information, and an administrative law judge ruled that the employer was privileged under Anheuser-Busch to withhold the witness statements.

On June 26, 2015, the NLRB overruled Anheuser-Busch, Inc., holding that the confidentiality of witness statements should be analyzed in future cases by balancing the union's need for the requested information against any "legitimate and substantial confidentiality interests established by the employer." This is the standard applied in all other cases involving assertions that requested information is confidential, as articulated in 1979 by the Supreme Court in the Detroit Edison Co. v. NLRB case. The Board went on to analyze the witness statements in the current case under the Anheuser-Bush test, finding that the witness statement that was given voluntary was, in fact, not a witness statement within the meaning of Anheuser-Busch. It found that the statement was not provided under an assurance of confidentiality and the witness gave the statement because she felt it was one of her job duties to do so. 

Importantly, the Board decision did not prohibit employers from withholding witness statements. However, no longer could the employer automatically do so, instead having to articulate a legitimate reason as to why it was necessary to withhold confidential information.  The Board did not identify any specific factors which would tend to justify nondisclosure, although it did allude to the original concerns underlying the Anheuser-Busch rule – fear of reprisal and intimidation – as possible justifications. 

The D.C. Circuit Declines To Scrap The Board's New Test

The D.C. Circuit ruled in yesterday's decision that the NLRB's application of Detroit Edison's standard for keeping witness statements in investigations confidential was lawful, agreeing that employers must justify the act of withholding witness information from the union once the arbitration process has commenced. Writing for the three-judge panel, Chief Judge Merrick Garland wrote that the court did not view the Board's decision as arbitrary or erroneous in applying the established law to facts, and quickly deferred to the Board's judgment on the necessity to overrule its own case law. The court instead turned most of its focus addressing American Baptist's concerns that it would be subject to unfair labor practice and contempt proceedings if it did not comply with the new rule for this specific case.

The court determined that for the specific case in front of it, the Board could not hold American Baptist in contempt for following the Board's order. For that reason, the court held that American Baptist did not have legal standing to challenge the NLRB's actions. However, for future cases, American Baptist – and all other employers – would be subjected to the Detroit Edison analysis when it comes to assessing whether witness statements would need to be produced to the union.

What This Means For Employers

If you have not done so, it is time to adjust to this new reality. You should be prepared with a "substantial" justification when withholding witness statements from the union. Unfortunately, because the D.C. Circuit did not affirmatively rule on the merits of the standard, there is no clear direction as to what a "substantial" justification will entail. You should consider adopting the following approaches to combat any challenges to the confidentiality of witness statements:

  • Maintain a confidentiality policy that covers witness statements;
  • During witness interviews, solicit from witnesses whether they have any fears that writing a statement might subject them to threats or any risk of retaliation. Ask for specific details and prepare a written memo of the specifics to support the company's decision to keep the statement confidential;
  • Promise employees only that statements will be kept confidential to the extent legally possible;
  • Stamp any investigative witness statements as "Confidential;"
  • Limit access to the documents to those individuals who have a need to know what is in them; and
  • Where there is a legal obligation to investigate a particular situation (for example where harassment is alleged), consider seeking legal counsel to aid the investigation process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions