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April 11, 2011

NLRB Considers Scope of Employee Witness Statements

by jparker

The National Labor Relations Board (NLRB) has invited interested parties to file a brief in a case, Stephens Media LLC d/b/a Hawaii Tribune Herald, which will assist the board in determining the scope and treatment of employee “witness statements.”

In previous decisions, the NLRB held that an employer does not have a duty to furnish witness statements to a union representative. The Stephens Media LLC case involves a reporter for the Hawaii Tribune Herald who was fired for insubordination after he attempted to accompany a circulation clerk, who was a shop steward, when she was called into a meeting with a supervisor.

The union requested all information considered by the company in firing the reporter. But the company only turned over the reporter’s discharge letter and personnel files. It did not provide information given by employee witnesses interviewed during the company’s investigation of employee misconduct. 

If the NLRB finds that employers are required to turn over confidential witness statements, employers’ ability to conduct effective investigations may be compromised. An amicus brief has been submitted to the board by Society for Human Resource Management (SHRM), the Council on Labor Law Equality, and the U.S. Chamber of Commerce. It supports previous NLRB cases holding that there is no duty to furnish witness statements. To review a copy of the brief, filed by SHRM, click HERE.

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