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.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.