Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Monday, February 18, 2013

NLRB Overrules Anheuser-Busch Precedent, Favors Balancing Test on Witness Statements

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The Labor Board on December 14, 2012 overruled a 36-year-old “bright-line rule” that denied labor organization representatives access to witness statements obtained by unionized employers, finding NLRB should balance the interests of unions and employers in assessing union requests for the names or statements of witnesses interviewed during a company investigation (Am. Baptist Homes of the W. d/b/a Piedmont Gardens,359 N.L.R.B. No. 46, 12/15/12 [released 12/21/12]).
NLRB Chairman Mark Gaston Pearce and Members Richard F. Griffin and Sharon Block said the U.S. Supreme Court has approved the board's balancing a union's need for relevant information against legitimate and substantial employer interests in keeping information. The board held in Anheuser-Busch Inc., 237 N.L.R.B. 982, 99 LRRM 1174 (1978), that witness statements were distinguishable from other information, but Pearce, Griffin, and Block found that witness statements relevant and necessary to a union's representation of employees are “fundamentally the same” as other information an employer must provide to a bargaining agent.
Member Brian E. Hayes dissented from the overruling of Anheuser-Busch, arguing that exempting witness statements from disclosure supported employer efforts to secure the participation of workers in investigations, and protected participating employees from retaliation or harassment by unions or co-workers.
Hat Tip: Daily Labor Report
Mitchell H. Rubinstein

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