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The US National Labor Relations Board (NLRB), in a 3-1 opinion issued on December 15, 2012 in thePiedmont Gardens case, has overruled the rule established in 1978 in the Anheuser-Busch case exempting confidential workplace investigation witness statements from pre-arbitration disclosure.
In Piedmont Gardens the NLRB majority held that in the future cases a balancing test must be applied, balancing the employer’s interests in confidentiality against the union’s interests in disclosure. This decision comes five months after the NLRB’s 2-1 decision in the Banner case, in which the majority rejected blanket employer confidentiality policies for workplace investigation witness interviews in favor of a balancing test. Banner is currently on appeal to the United States Court of Appeals District of Columbia Circuit.