A recent National Labor Relations Board decision, General Aire Systems, Inc. (371 NLRB No. 120), reminds employers of some pitfalls they may face when handling a union’s request for information, and steps that may be taken to minimize associated legal risks.
By way of background, when a union has a collective bargaining relationship with an employer, it can require the employer to provide information that is potentially relevant to the union in carrying out its duties as an employee bargaining representative. A union’s information requests can arise both at the bargaining table and in the context of grievance arbitration.
Relevance is generally presumed for information about such things as wages, hours and other working conditions for the employees the union represents. However, in some cases, the union must prove the relevance of its request, notably when the information sought concerns employees who are not represented by the union, or who might not be represented by the union. In such cases, the union can discharge its burden if it shows that it has a reasonable belief, supported by objective evidence, that the information requested has some bearing on the matter at hand, may be of use to the union in carrying out its duties, and is more than a mere suspicion.
When a union does request relevant information, the employer generally has to comply unless it can establish a valid defense.
In General Aire Systems, Inc. the employer was in a collective bargaining relationship with a construction union. The union learned that the employer had advertised non-union positions to do certain maintenance work, which the union felt was covered under the collective bargaining agreements (CBAs) the union had with the employer. So, the union “salted” the employer, by having a few of its members apply for the advertised non-union work. They were then hired and did the maintenance work for a few months. The union filed a grievance and, in that context, asked the employer for documents relating to the assignment of the maintenance work for the three year period prior to the filing of the grievance. The employer refused, arguing that the work was not covered under the CBAs because it was not construction work. The union filed an unfair labor practice charge with the Board, alleging that the refusal to provide the requested information violated sections 8(a)(1) and (5) of the National Labor Relations Act (which concern unlawful interference with employees’ protected rights and refusal to bargain collectively).
At a hearing before an Administrative Law Judge (ALJ), the employer argued that the key issue in the dispute was whether the CBAs covered the maintenance work or not, and, until that issue was decided, it should not be put to the trouble of responding to the union’s request. The ALJ rejected this position, noting that the scope of work section in the CBAs “appears” to cover the maintenance work in question, even if the ALJ did not definitively decide that question. Thus, even if the disputed work might later be found not to be union work, the union held a reasonable belief that the CBA had been violated and therefore fairly made the information request.
The ALJ rejected all defenses that the employer advanced, found that the Act had therefore been violated and issued a number of orders, including that the employer provide the requested information.
Upon review by a three-member panel, the Board affirmed the ALJ’s findings, conclusions and orders, modifying the orders to reflect that, post-hearing, the union sought the requested information only in three states where the employer operated.
Of particular note, the employer had argued that the requested information was too onerous to produce, and could involve manual review of 5400 individual files, comprising over 40 pages each. Apart from finding that the employer’s claim was speculative, the ALJ noted that, in any event, the time and money needed to fulfill a valid information request are not grounds for refusing the request altogether. Rather, they are issues that need to be bargained in good faith between the employer and union. The ALJ also noted that the employer had not raised the issue of cost prior to the hearing and had not attempted to bargain the issue with the union. For the ALJ, this undermined the employer’s raising the burden of the information request as a defense.
Take away
When a union’s request for information raises concerns for an employer (relevance, confidentiality, cost burden), these concerns should be clearly stated to the union at the earliest possible time and the employer should seek to bargain reasonable parameters about the request. Any applicable privileges or other lawful grounds for refusing the request should be invoked, ideally in writing.
An objective assessment of the relevance of the union’s request should be made, keeping in mind that the Board’s current position is that the union’s burden of proving relevance is not exceptionally heavy, and that the Board will not determine the merits of an underlying grievance before deciding if the requested information is relevant.
Finally, if a request is thought to be too onerous, the costs and burdens of compliance need to be objectively quantified if possible and this should figure into the employer’s bargaining over the issue and, if need be, its later defenses advanced before the Board.
In particularly sensitive cases, employers are well advised to seek legal counsel before committing to a position on a union’s information request.
