Category Archives: Witness statements

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Johnnie’s on the Spot; Board Reaffirms Standards for Employer Interrogations of Employees in Preparation for NLRB Proceedings

On the eve of the last day of Member Ring’s term, and in the third in a string of significant rulings by the National Labor Relations Board (“NLRB” or “Board”) (which we reported on here and here)—with potentially more to come—the Board, in Sunbelt Rentals, Inc., 372 NLRB No. 24 (2022), affirmed the standards applicable … Continue Reading

Busy Board Returns to Rule Permitting Workplace Confidentiality Restrictions during an Employer’s Investigation

By Mark Theodore, Joshua Fox and Dominique Kilmartin on December 18, 2019 Posted in Confidentiality, Employer policies, Investigations, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Witness statements, Workplace Investigations

As anticipated, in one of the last decisions before the end of Member McFerran’s term, the NLRB issued another important opinion. Reverting back to precedent that preceded a 2015 decision, the Board, in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), held that an employer’s confidentiality restrictions for information relating to … Continue Reading

The Devil Is In the Details: New Board Members Likely To Change Law In Nuanced Ways

By Mark Theodore on October 9, 2017 Posted in Duty to furnish information, Duty to provide information, Employer policies, General Counsel, Investigations, NLRA, NLRB, Protected activity, Section 8(a)(1), Specialty Healthcare, Uncategorized, Unfair Labor Practices, Witness statements

The end of September in most years sees a spate of new NLRB decisions, sometimes dozens, issued on or about September 30, to coincide with the end of the agency’s fiscal year. Not so this past September 30 because of the recent changeover from a majority of Democrat Board Members to a majority of Republican … Continue Reading

Circuit Court Rejects Attack On NLRB’s New Witness Rule

By Mark Theodore on June 7, 2017 Posted in Collective Bargaining, Due Process, Duty to furnish information, Duty to provide information, General Counsel, Investigations, NLRA, NLRB, Section 8(a)(1), Section 8(a)(5), Uncategorized, Unfair Labor Practices, Witness statements

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 … Continue Reading

General Counsel’s Division of Advice Issues Helpful Guidance on Confidentiality Rules in Workplace Investigations

By Ronald Meisburg on April 23, 2013 Posted in Confidentiality, Investigations, NLRA, NLRB, Witness statements

As we reported here, in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the NLRB reviewed an employer’s blanket policy of requiring witnesses to maintain confidentiality during workplace investigations. The Board found that such a policy chilled the right of employees to engage in the protected concerted activity … Continue Reading

Update: NLRB Seeks U.S. Supreme Court Review Of Recess Appointments

By Mark Theodore on March 12, 2013 Posted in Duty to furnish information, NLRA, NLRB, Recess appointments, Rulemaking, Witness statements

The NLRB announced today that the agency would seek U.S. Supreme Court review of the D.C. Circuit decision in Noel Canning, which ruled that the President’s recess appointments made last year (and perhaps in the years prior) were unconstitutional. The decision of the appeals court has cast a great deal of uncertainty over past and current … Continue Reading

NLRB Overrules Another Longstanding Precedent: Witness Statements No Longer Exempt From Disclosure

By Mark Theodore on December 29, 2012 Posted in Collective Bargaining, Duty to furnish information, Duty to provide information, NLRA, NLRB, Section 8(a)(5), Uncategorized, Witness statements

The precedents are falling fast. Last week the NLRB overruled the five decade old Bethlehem Steel decision, and now another longstanding precedent has fallen. The NLRB issued a decision overruling Anheuser-Busch, Inc., 237 NLRB 982 (1978), the case that held that witness statements obtained during an employer investigation of workplace misconduct are exempt from disclosure … Continue Reading

The Lull Before The Storm: Blizzard Of NLRB Activity Coming

By Mark Theodore on July 29, 2011 Posted in Bargaining units, Duty to furnish information, Healthcare Employers, NLRA, NLRB, Protected activity, Rulemaking, Section 7, Section 8(a)(1), Section 9(b), Witness statements

The mid-point of Summer has passed. Although the NLRB has not issued a major decision in several weeks, the agency has not been slacking off this Summer. In a typical year, August and September are the busiest months for the NLRB, because the federal government’s fiscal year ends September 30. During the final weeks of the … Continue Reading

NLRB Hints At Broader Agenda In Witness Statement Case

By Mark Theodore on March 21, 2011 Posted in Arbitration, Duty to furnish information, Duty to provide information, NLRB, Pre-arbitration Discovery, Section 8(a)(5), Unfair Labor Practices, Witness statements

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 … Continue Reading