The National Labor Relations Board recently issued a business relocation decision in Embarq Corporation, 356 NLRB No. 125 (2011), which would not have been noteworthy if not for Chairman Liebman’s concurrence. Chairman Liebman signaled that the Board may be ready to revisit its longstanding analysis regarding a business’ obligation to bargain with a union and disclose information related to relocation decisions that was created in Dubuque Packing, 303 NLRB 386 (1991) (a case near and dear to my heart, as my grandfather worked for Dubuque Packing for more than 30 years!)
Chairman Liebman concurred in the Board’s ultimate decision that the employer, Embarq Corporation, did not violate the law by refusing to provide information about a planned relocation of its Las Vegas call center or bargaining over the ultimate decision itself. However, she used this case to illustrate that Dubuque Packing created what she believed to be an unhelpful “anomaly” relating to the union’s request for detailed information about the relocation and the reasons for the move. Specifically, she had difficulty with the fact that under the Dubuque test a relocation decision is only a mandatory subject – – and, therefore, there is only an obligation to provide information to the Union – – if the Union could have given sufficient concessions to prevent the relocation. As she explained:
…[C]urrent law does not compel the production of information at the time when it is sought – or, indeed, ever – if the Board, in hindsight, determines that concessions would have made no difference, even where (as here) no bargaining ever occurred…In such cases, the Board’s determination is based…on guesswork about the concessions that a well-informed union would have offered and about the employer’s response to those proposals.
Chairman Liebman suggested, as an alternative, that a company be obligated to provide the union with information regarding labor costs when the relocation plan “turns” on such costs.
At the end of her concurrence, Chairman Liebman said, “Because no party has asked the Board to revisit existing law, I join the decision. But in a future case, I would be open to modifying the Dubuque framework in connection with union requests for information.”
This would be a significant departure from today’s standard that requires no disclosure of information if the decision to relocate is not a mandatory subject of bargaining. In fact, it would be a major departure from the general rule that an employer is only required to provide information to a union about mandatory subjects of bargaining. Thus, if implemented, it could not only impact how employers will have to analyze relocation decisions, but might further effect and change the way we look at all types of information requests.