The National Labor Relations Board has overruled long-standing precedent and decided it would no longer automatically find exempt from disclosure to a union a written statement by an employee-witness. Instead, the NLRB in Piedmont Gardens, 359 NLRB No. 46 (12/15/12), decided it will apply a balancing test to determine whether such statements should be produced. The NLRB will balance the union’s need for the information against “any legitimate and substantial confidentiality interests established by the employer.” This is another decision made just prior to the end of Member Brian Hayes’ term on the Board.

The decision will be applied prospectively and not to any case where the employer’s refusal to provide requested witness statements occurred before the date of the Piedmont Gardens decision.

Piedmont Gardens comes on the heels of the NLRB’s decision in another case involving witness statements, Hawaii Tribune Herald, issued the day before Piedmont Gardens, on December 14, 2012 and discussed in our article Witness Statements May Not Be Protected from Disclosure to Union, NLRB Says. In that case, the NLRB decided that, for a document to be considered a witness statement at all, the employee-witness must have been given an assurance of confidentiality and must have adopted the statement as his own. It appears the NLRB will now use its Piedmont Gardens balancing test when determining whether a statement by a witness is exempt from disclosure to a union instead of the analysis contained in the Hawaii Tribune Herald decision. However, even if the NLRB decides that the balancing test works in favor of disclosure, a witness statement still may be exempt from disclosure as attorney work product.