In a ruling that could make workplace investigations at unionized facilities all but impossible, the National Labor Relations Board (NLRB) reversed a 37-year-old precedent that protected employees from retaliation. 
Under the prior Anheuser-Busch standard, employers did not have to hand over witness statements, particularly from employees, to unions in discipline cases. If an employee witnessed something that could help a grievance investigation, the employer could ask for a statement and usually could promise that at least the statement itself would remain confidential.
Under the new standard, a balancing of interests would have to be applied, with a burden of proof on the employer. It is much more difficult to prove that witness statements need to be confidential, which means it is almost certain that any statement a witness files with an employer is going to be seen by the union and the grievant. Most management-side attorneys believe the new test will discourage employee cooperation with workplace investigations into employee misconduct and create uncertainty for employers.
Noah J. Garber, representing the NLRB’s General Counsel, argued that a restrictive view of disclosure unnecessarily costs unions time and money by forcing them to take a grievance to arbitration without “the opportunity to evaluate the merits of the claim.”
On the other hand, management advocates see this as an effort to assist unions at a great cost to confidentiality and efficiency. As former NLRB member Brian Hayes commented, there was a “bright-line standard” under Anheuser-Busch that has now been replaced by an inquiry into the need for confidentiality that runs on a different track from the arbitration process at the center of a grievance. Among the practical problems noted is the difficulty in knowing at the outset how to balance interests that have yet to be articulated. Others have pointed out that the prior standard has worked effectively and, but for the ideological bent of the Board, there was no general effort supporting this change.
The 3-2 decision included vigorous dissents from members Philip A. Miscimarra and Harry I. Johnson predicting that investigations would be undermined and unpredictable and emphasizing that confidentiality was an irreplaceable element in securing employee witness statements. As in past similar splits, the dissents all but prepared a brief for the employer to challenge the decision in court. American Baptist Homes of the West d/b/a Piedmont Gardens and Service Employees International Union, United Healthcare Workers-West, 
Case Number 32-CA-063475 (2015).
Burton J. Fishman is of counsel to Washington, D.C.’s, Fortney & Scott, LLC, and is recognized as one of the nation’s leading authorities on workplace law. A former deputy solicitor of the U.S. Department of Labor, his experience extends to the full spectrum of employment and labor matters.