November 9, 2012

NLRB: Irrelevant Union Requests Demand Timely Response

by Bradford J. Williams

A union’s request for information demands a timely response, even if the requested information is irrelevant to the collective bargaining relationship or any underlying grievance.  That’s the ruling of a recent National Labor Relations Board (NLRB) decision expanding an employer’s duty to bargain in good faith under Section 8(a)(5) of the National Labor Relations Act (NLRA).  Employers must now timely respond to all requests for information involving bargaining unit members or risk an unfair labor practice charge. 

The statutory duty to bargain in good faith includes the duty to provide unions with information needed to engage in collective bargaining or administration of a collective bargaining agreement (e.g., through a grievance procedure).  As such, the NLRB has long held that employers must timely provide unions with information that is relevant and necessary to their performance as collective bargaining representatives.  It has also long held that employers must timely object to requests for relevant information that might lawfully be withheld on the basis of confidentiality, privacy, or other interests.

Before its decision last month, however, the NLRB had never previously decided whether an employer must timely respond to a union’s request for information that is determined (or admitted) to be irrelevant.  An employer must now timely respond.

In its October 23, 2012, decision, the NLRB held that a company engaged in interstate trucking violated Sections 8(a)(1) and 8(a)(5) of the NLRA by failing for a period of four and one-half months to respond to a union’s request for information involving the company’s drivers.  This was so even though the union admitted that the request was irrelevant to any pending grievance.  In its ruling, the Board characterized the requested information as “presumptively relevant” at the time the request was made because it related to unit employees.  The Board determined that the company had a duty to “respond promptly” to the union’s request, even if just to explain its reason for refusing to provide the (irrelevant) requested information.

The Board’s latest decision is troubling.  Employers may now no longer ignore union requests, even when the requested information is clearly irrelevant to collective bargaining or contract administration.  Instead, they must promptly respond to all requests and either (a) provide the requested information, or (b) explain why it is being withheld.  This is true with respect to any requests involving bargaining unit members.  Employers are thus encouraged to consult counsel immediately after receiving information requests to ensure the preparation of an adequate and timely response.  Failure to do so may expose employers to unfair labor practice charges and give unions leverage in ongoing negotiations or grievance proceedings.

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