On June 26, 2015 the Board issued a decision in American Baptist Homes of the West d/b/a Piedmont Gardens in which it overruled precedent that has been in place since 1978 which had exempt witness statements from disclosure under the request for information guidelines per Section 8(a)5 of the Act. Notwithstanding strong public policy to the contrary, the majority found no reason to continue to apply the Anheuser-Busch doctrine when it comes to workplace investigations. The dissents of members Johnson and Miscimarra provide a very cogent argument in support of the public policy which maintained the Anheuser-Busch doctrine for these many years. What is most striking however, is the hypocrisy of the NLRB in finding that the Anheuser Busch doctrine should be overruled because it is not an effective mechanism when the Board still continues to apply the Anheuser-Busch rule when it comes to ULP proceedings in that the Board does not disclose witness affidavits in NLRB proceedings for the exact same reasons that were expressed by the Board when it originally issued Anheuser-Busch, that being fear of intimidation and harassment, as well as witness tampering. How the Board can say that they will adopt a restrictive standard for their own internal proceedings, but not for proceedings outside the context of ULP hearings, is beyond comprehension.
As summarized by member Johnson in his dissent “in sum, for over 30 years the rule of Anheuser-Busch has protected the arbitration process, protected employee witness who participated in work place investigations from coercion and intimidation and enabled employers to conduct effective investigations into workplace misconduct. Because confidentiality is universally central to all employer internal investigations of employee misconduct, the Detroit Edison case by case balancing of confidentiality interests is inappropriate and unnecessary.” That protection now ceases to exist.