Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Employer Investigations

Reversing a 34-year precedent, the National Labor Relations Board (NLRB), recently ruled that an employer must disclose witness statements and other data to a labor union representing an employee who may be subject to discipline for the incident.  American Baptist Homes, 359 NLRB 46 (2012).  The decision overruled Anheuser-Busch, Inc., 2037 NLRB 982 (1978), whose reasoning the current board, found “flawed.”  Under the new decision, employers must generally divulge witness statements and other data gathered during an investigation process to labor union representatives as part of the grievance-arbitration process under a collective bargaining agreement.

Advocates for unions and their members may cite this ruling in seeking access to investigative materials gathered by an employer.  The board, however, left some room open for employers and their advocates to seek to prevent disclosure by arguing that the materials are sensitive or confidential.

Marshall H. Tanick

Hellmuth & Johnson PA, Edina

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