Labor-blog-3.jpgAs Ron Meisburg reported last week, the National Labor Relations Board recently announced in Hawaii Tribune-Herald, 356 N.L.R.B. No. 63 (2011) that it might reconsider its long-standing precedent that employers are not required to provide “witness statements” obtained in the course of a disciplinary investigation, to the unions representing their employees.

As we anticipated, following its recent trend before it overturns long-standing precedent, the Board has now invited all interested parties to submit briefs setting forth their position on this important issue.  The Board has specifically requested positions on whether it should continue to adhere to its witness statement precedent, and even if a statement is not a “witness statement” what standard should be used to determine if a statement gathered during an investigation should be protected from disclosure because the statement may be attorney-work product.

The Board’s ultimate decision on the scope of witness statements which might have to be furnished by employers could have far reaching implications beyond simple grievance arbitrations.   Witness statements frequently are obtained as part of employer internal investigations into allegations of all forms of workplace misconduct, including harassment and discrimination claims.  Thus, a holding that witness statements must be turned over to a union under the National Labor Relations Act could impact an employer’s ability to protect the results of those confidential internal investigations from disclosure prior to litigation.

Amicus briefs, which must be filed electronically on or before April 1, 2011, may not exceed 25 pages.

Photo of Michael Lebowich Michael Lebowich

Michael J. Lebowich is a partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional…

Michael J. Lebowich is a partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional labor law.

Michael acts as the primary spokesperson in collective bargaining negotiations, regularly handles grievance arbitrations, assists clients in the labor implications of corporate transactions, and counsels clients on union organizing issues, strike preparation and day-to-day contract administration issues. He also has significant experience in representation and unfair labor practice matters before the National Labor Relations Board.

His broad employment law experience includes handling of race, national origin, gender and other discrimination matters in state and federal court. A significant amount of his practice is devoted to counseling clients regarding the application and practical impact of the full range of employment laws that affect our clients, including all local, state and federal employment discrimination statutes, the Fair Labor Standards Act, the Family and Medical Leave Act, and state labor laws.

Michael has substantial experience in a wide variety of industries, including entertainment, broadcasting, newspaper publishing and delivery, utilities and lodging. He represents such clients as The New York Times, BuzzFeed, ABC, the New York City Ballet, PPL, Pacific Gas & Electric, Host Hotels and Resorts, and The Broadway League (and many of its theater owner and producing members).  Michael also has significant public sector experience representing, among others, the City of New York and the Metropolitan Transportation Authority.

Michael is a frequent guest lecturer at Columbia Business School, the Cornell School of Hotel Administration, the New York University Tisch School for Hospitality, Tourism and Sports Management, and is an advisory board member of the Cornell Institute for Hospitality Labor and Employment Relations.