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Washington Labor & Employment Wire » Interested Parties Invited to Submit Amici to NLRB Concerning Witness Statements

Interested Parties Invited to Submit Amici to NLRB Concerning Witness Statements

On March 2, 2011, in Stephens Media LLC d/b/a Hawaii Tribune Herald (“Stephens Media”), No. 37-CA-7043, the NLRB invited interested parties to submit amici concerning employee witness statements.

In the first phase of Stephens Media, the Board ruled against the employer, a Hawaii newspaper, finding that it violated Section 8(a)(1) of the NLRA in refusing to provide union representatives to employees in disciplinary meetings and engaging in related unfair labor practices. 356 N.L.R.B. No. 63 (Feb. 14, 2011). The Board delayed ruling on a second issue – whether the employer was obligated to provide witness statements collected in the course of investigating the employee under Sections 8(a)(1) and 8(a)(5), setting aside the question for later determination.

In previous decisions in Fleming Cos., 332 N.L.R.B. 1086 (2000), and Anheuser-Busch Inc., 237 N.L.R.B. 982 (1978), the NLRB ruled that the employer’s obligation to furnish information “does not encompass the duty to furnish witness statements themselves.” In the February 14, Stephens Media decision, however, the Board questioned the scope and applicability of these decisions to the instant case. The request for amici for a second phase of Stephens Media, seeks clarification on (1) the definition of “witness statements” under Fleming Cos. And Anheuser-Busch, Inc., and (2) whether other types of investigatory documents are included in the employer’s duty to provide information.

Interested parties have until April 1, 2011 to file amicus briefs, which may be no more than 25 pages in length. The Board has also provided two additional weeks, until April 15, for response briefs.