NLRB Hints At Broader Agenda In Witness Statement Case

Posted by Mark Theodore on March 21, 2011

Employers faced with evidence of employee misconduct often conduct investigations.  In many cases, there is no direct evidence.  Oftetimes, there exists conflicting versions of events, and so witness statements are obtained.  The employer then can consider all the aspects of what happened, taking into consideration who saw what, and the candor of employees.  For over 32 years, such witness statements have been considered confidential material that does not have to be turned over to a union during an ensuing grievance.  The reasons for this rule are pretty obvious and logical:  witnesses are almost always reluctant, and disclosing statements they give in an internal company investigation can subject them to undue pressure, and even coercion, from fellow employees and union representatives.

Despite the thirty plus year precedent, the Board may be considering reversing this rule as it continues to march forward with its new agenda.  As reported earlier in this blog, the NLRB solicited briefs in Hawaii Tribune-Herald, 356 NLRB No. 63 (March 2, 2011).pdf to consider the circumstances under which a witness statement obtained by an employer during an investigation might have to be turned over to the union representative of the employees.  The NLRB's invitation to file briefs seems to be straightforward and states the questions to be considered as

"This case illustrates, however, that Board precedent does not clearly define the scope of the category 'witness statements.'  This case also illustrates that the Board's existing jurisprudence may require the parties as well as judges and the Board to perform two levels of analysis to determine whether there is a duty to provide a statement:  first asking whether the statement is a witness statement under Fleming and Anheuser Busch, and then if the statement is not so classified, asking if it nevertheless is attorney work product.  We have therefore decided to sever this allegation from the case and to solicit briefs on the issue it raises."

(Emphasis added).  These are questions about the scope of the underlying precedent, as in, what exactly is a "witness statement"?  Yet the Board, when it posted on its website hinted that it might be pursuing a much broader agenda.  The NLRB website poses the issue as  "1)whether the Board should coninue to adhere to the holding in Anheuser-Busch, Inc., 237 NLRB 982 (1978), that an an employer's duty to furnish information under Section 8(a)(5) of the Act does not encompass the duty to furnish witness statements and, if not, what standard should be applied to requests for such statements." 

 Anheuser-Busch, Inc., 237 NLRB 982 (1978).pdf, of course, is the 1978 NLRB decision holding that witness statements are confidential material.   The Board in that case, citing Supreme Court precedent held, unequivocally, that "requiring either party to a collective bargaining relationship to furnish witness statements to the other party would diminish rather than foster the integrity of the grievance and arbitration process."  Id. at 984. 

Counsel for the Hawaii Tribune-Herald immediately highlighted the major discrepancy between the NLRB website description of the issue and the invitation to file briefs in a March 21, 2011 Letter to NLRB.pdf  We will see if the NLRB clarifies the issues.  At a minimum, interested parties won't be sure what questions should even be addressed.  The website version of the issue would be a major change of NLRB precedent that could impact every employer that has union represented employees.

NLRB GC To Regional Directors: Scrutinize Arbitration Decisions That May Implicate the NLRA

Posted by Mark Theodore on February 01, 2011

The Acting General Counsel of the NLRB, Lafe Solomon, continued to shake up the way matters are handled at the agency, by issuing new guidelines for the handling of pre- and post-arbitration cases.  The new policy guidelines will have an immediate impact on cases where the employent action (usually a discharge) has prompted both a grievance (alleging a violation of the collective bargaining agreement) and an unfair labor practice charge (alleging violation of the National Labor Relations Act).  The most important impact of these new guidelines is that it is now much more likely that should an employee not prevail in the grievance, he or she will still be able to seek the same remedies (reinstatement, backpay, etc.) through NLRB processes. 

Post Arbitration Deferral - The burden shifts. Up until the new guidelines were issued, the NLRB considered that an arbitration decision fullly resolved both contractual (grievance) and statutory (unfair labor practice charge) concerns where the arbitrator "was presented generally with the facts relevant to resolving the unfair labor practice."  See Olin Corp., 268 NLRB 573, 573-574 (1984).  Under this deferral policy, the employer needed only to try the case one time.  If the arbitrator ruled in favor of the employee, there usually was no need to pursue the unfair labor practice charge.  Likewise, if the employer won the arbitration, the NLRB typically took the position that no further processing of the NLRB charge was necessary, because the arbitrator had considered the same or a similar set of facts.

Concluding that this policy is "distnctly at odds with that which prevails in other areas of employment law," Solomon issued new guidelines for evaluating post-arbitration deferral issues.  Specifically, the GC Memorandum states that the Board should "no longer defer to an arbitral resolution unless it is shown that the statutory rights have been considered by an arbitrator."  Further, the guidelines now state that "the party urging deferral should have the burden of showing that the deferral standards articulated above have been met."

The new guidelines are significant, and likely will prolong the resolution of cases which are the subject of both arbitration and unfair labor practice charge allegations, because:

  • Employers will now have to ensure that the arbitrator specifically considers the NLRA implications of the discharge.
  • Because the Employer has the burden of proof in a dishcarge grievance, it will now have to prove as part of its case that it did not violate the NLRA. 
  • Raising issues concerning the NLRA in a grievance arbitration necessarily will prolong the hearing itself because of the additional proof needed. 
  • Raising an NLRA implication will force the Union to present its own evidence to support how the activity of the eployee's activity was protected by the NLRA.
  • It likely will take longer to receive the arbitration award because the arbitrator now has to articulate in the decision how the facts are interpreted under both the NLRA and the parties' contract.
  • The cost of arbitration will increase, because the possibility of having to re-litigate the same issue in front of the NLRB at a later date will cause more employers to call for a formal transcript of proceedings to memorialize witness testimony.  Arbitrations also could cost more because of the additional hearing and decision-writing time necessary to deal iwth the NLRA issue.
  • An employer who prevails will now have to submit the arbitration to the NLRB for scrutiny.
  • It is possible the NLRB could conclude the arbitration decision, though rooted in the same facts that led to the unfair labor practice charge, is not sufficient for deferral.  It is also possible the NLRB could conclude the arbitrator's decision did not sufficiently articulate the rationale concerning the NLRA or, simply, that the arbitrator was wrong.  Under any of these scenarios, the NLRB automatically would proceed to issue complaint on the unfair labor practice allegations, which would then be litigated through NLRB processes.

Pre-Arbitration Deferral.  In his GC Memorandum, Solomon also addresses pre-arbitral deferral.  Before the issuance of the memorandum, deferral of cases involving NLRA allegations was standard if there was agreement between the employer and union.  Noting that "substantial time may pass while the arbitration process proceeds when a case is deferred. . investigation of the alleged unfair labor practices is more difficult."  In order to prevent such hindrances to investigation, the Region should take affidavits "from the Charging Party, and from all witnesses within the control of the Charging Party," before deciding whether deferral is appropriate.

Like the new post-arbitration deferral guidelines, this policy can only make resolution of the issue harder, because:

  • A person (or Union) filing an unfair labor practice charge now will have to swear under oath as to the undelrying facts; before the new guideline, the Charging Party need only have made allegations.  The requirement to articulate the allegations may only serve to raise the stakes as it provides a formalization (and therefore length) to the process.
  • Once the allegation has been articulated to the NLRB the Union and the employee will pursue it to its fullest extent at the grievance hearing.

 Under these new pre- and post-arbitration guidelines, the probablility of the process for resolution  of the issue taking longer and costing more seems high.  Employers now have to be very careful in deciding whether it is even worth deferring a case to arbitration, and if it is, how additional scrutiny can be kept to a minimum. If a case is deferred to arbitration, the employer will have to  be much more careful in the selection of arbitrators to ensure that the NLRA implications are fully considered.

The General Counsel Memorandum, issued January 20, 2011 can be found here GC Mem 11 05 012011.pdf