During the last several years, the NLRB has overturned a great deal of existing precedent.  Among other changes, the Board has required bargaining over discipline in newly organized units, found graduate students to be employees entitled to organize, and found that two employers may have to bargain together.  The Board also changed the longstanding rule that witness statements do not have to be produced n in response to a union’s information request.  The witness statement case as originally reported was issued by a two person Board in 2012 and ultimately was overturned by the Supreme Court’s New Process Steel case.  The NLRB, never one to let go of a good change in precedent, simply reissued the decision in American Baptist Homes of the West, 362 NLRB No. 139 (2015).   Then Member Miscimarra dissented (which means this rule could be overturned in the coming months).

It Started With An Investigation

The employer started an investigation of a nursing assisting suspected of sleeping on the job.  The employer talked to three employees.  Two of the employees were reluctant to discuss what they saw and the employer assured them of confidentiality.  Those two employees gave statements.  A third employee, a charge nurse, gave a statement voluntarily as it was part of her duty to provide reports. The union representing the employees asked for all witness statements.  The employer refused, and in its letter rejecting the union’s request, it cited the existing case law, which provided a bright-line rule that the duty to provide information did “not encompass the duty to furnish witness statements themselves.”  Anheuser-Busch, Inc., 237 NLRB 982, 984-985 (1978).  The union filed charges which led to the rule change in the two subsequent Board decisions.

The Board Overrules Anheuser-Busch But Only Prospectively

In reiterating the new rule, the Board applied it prospectively.  In particular, the Board noted that the two employee statements obtained after assurance of confidentiality were “witness statements” that did not have to be disclosed.  The Board concluded the employer had expressly relied on the existing law even citing it in its letter to the union and it would not be fair to apply the new rule in these circumstances.  As to the third, voluntarily provided statement, the Board ruled that because it was part of the nurse’s job duties to provide statements it was not a “witness statement” and therefore, the employer’s failure to turn it over constituted a violation of Section 8(a)(5).  The employer appealed the case to the D.C. Circuit Court of Appeals.  The NLRB cross-petitioned for enforcement of its decision.

Court Rules Employer Lacks Standing To Challenge NLRB’s New Rule

In American Baptist Homes of the West v. NLRB, No. 15-1445 (D.C. Cir. June 6, 2017) the court upheld the NLRB’s decision. The court noted that the two witness statements that the Board did not require disclosed were not at issue, and only the third statement was subject to the appeal.  The employer argued that the Board had impermissibly departed from its longstanding witness statement case law.  The court disagreed, noting that “witness statements” as defined by Anheuser-Busch and its progeny stand for the proposition that an assurance of confidentiality “must have motivated the witness in order to bring the statement within the protection of Anheuser-Busch.”   In other words, the third employee’s statement did not qualify as a “witness statement” even under the old rules but was more of a business report.

The employer also challenged the new rule “notwithstanding that the [Board’s] decision will apply only in future cases.”  The court rejected this claim noting that “a party generally lacks standing to challenge adjudicatory rulings that have not been applied to it.”

Summary

The case serves to highlight one of the bigger changes to the law in the last few years.  By disposing of the bright-line rule that witness statements need not be disclosed in an information request the Board erased a major area of certainty in employer (and to a lesser extent, union) investigations.  Had the employer prevailed in court it likely would have made very little difference beyond the case in question, as the NLRB does not often pay much attention to court of appeals decisions.

Change to this rule likely will be addressed in the coming months as a new NLRB takes shape.