The “request for information” has always been a powerful tool in collective bargaining, whether as leverage in contract negotiations, related to the processing of grievances or during everyday interactions between unions and employers. Perhaps as a result of recent National Labor Relations Board (NLRB) decisions, requests for information are being employed in a more aggressive, and more importantly, more tactical way.
The duty to provide a union with information arises when an affirmative request is made, but many employers have misconceptions about what they must provide. A union may request information related to a specific issue, concern or grievance, but it also may seek information to determine whether an employer is complying with the parties’ collective bargaining agreement or applicable laws, such as the Family and Medical Leave Act, Occupational Safety and Health Administration or the Fair Labor Standards Act. It is not necessary for there to be an open or active grievance; depending on what a union demands, an employer could be obligated to provide information to permit the union to investigate and determine whether to file a grievance.
Information that the NLRB considered to be presumptively relevant to a union’s representational capacity includes such data as the names/addresses of employees, equal employment opportunity information, personnel files, job titles, seniority, wage rates, personnel policies, benefit information, safety data, disciplinary records and, with some limitations, medical records. Generally, information about employees and operations outside of the particular bargaining unit is not presumptively relevant.
This distinction, however, may now be immaterial given the board’s recent decision in IronTiger Logistics, Inc..
Prior to IronTiger, the key to determining whether an employer was obligated to respond to an information request was relevancy. If the information was legally irrelevant, an employer had no to duty to provide the information or to respond to the request because the duty was limited to “relevant” information requests.
In this case, a union made a request for information it maintained was relevant to a pending grievance pursuant to the parties’ collective bargaining agreement. Because the employer did not believe the information was relevant, it took almost six months to respond and then took the position that the union was not entitled to the information on relevancy grounds. An administrative law judge (ALJ) found the employer violated the National Labor Relations Act (NLRA) when it failed to provide a timely response to the union’s “presumptively relevant” request.
On appeal, by a 2-1 majority (Chairman Mark Gaston Pearce and Member Sharon Block with Member Brian Hayes dissenting), the NLRB adopted the ALJ’s decision. According to the board, the employer’s violation resulted from its six-month delay in responding to the union in any fashion. As the majority stated, the employer “was required to timely provide that information or to timely present the Union with its reasons for not doing so. The respondent did neither, and thus violated Section 8(a)(5) and (1) of the [NLRA].” This finding, standing alone, would not necessarily be troubling, except the majority went further, holding that the employer was obligated to respond to the request even though the administrative law judge found, and the board affirmed, that the information was not legally relevant.
As Hayes stated in his dissent: “Until today, the Board has never held that there is an independent statutory duty to respond to a request for presumptively relevant information, even if that presumption was rebutted in litigation.” Contrary to Hayes’ objection, the NLRB concluded that a timely response, even if only to state the reason information will not be provided, is part of “good faith” bargaining and preferable to increased disputes between parties.
Even more alarming is the possibility that this decision could force employers to respond to requests from parties arguable without standing to make such requests, such as employees engaged in protected concerted activity or a union engaged in organizing, but not yet certified as the representative. As Hayes stated, employers should be concerned that the ruling “gives even greater latitude for unions to hector employers with information requests for tactical purposes that obstruct, rather than further, good-faith bargaining relationships.”
Although one cannot know to what extent Hayes’ concerns will or will not materialize, it would behoove employers to be ready for employees or unions intent on gaining an advantage in organizing or bargaining by making and litigating irrelevant information requests. Regardless of the source, employers should advise any requesting party whether the company will provide information and if it will not, the reasons for the employer’s position. Otherwise, employers risk NLRB proceedings.