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Labor Relations Update

Nitpicking Continues As NLRB Finds Employer’s Failure To Timely Respond To Information Request A Violation Of The Act

Posted in Duty to furnish information, Duty to provide information, NLRA, NLRB, Section 8(a)(5), Section 8(b)(3)

The Board’s fiscal year ended on September 30 with a whimper instead of a bang.  We saw a few decisions in the usual year end flurry but most of the major Board initiatives were advanced in the last two years, and so this probably is a calm before the Presidential election.

Yet change still is occurring.  As we have remarked, the Board’s approach this year is one of incrementalism.  We don’t see precedent being swept away so much as slowly eroded, with small pieces being removed or expanded here and there.  It’s probably easier given the storm of pushback the Board received, and continues to still receive, over some of its more sweeping changes.  That is why we now see decisions coming down that are not of the earth shattering variety, like when perfectly logical and innocuous phrases in company policies such as “[e]veryone is expected to be courteous” and requiring employees “not to bear false witness” somehow suddenly became violations of the law even though people are taught from kindergarten on to be nice and to not lie.

The Board furthered its incrementalist agenda when it issued its 2-1 decision in IronTiger Logistics, Inc., 359 NLRB No. 13 (October 23, 2012).  This case involved ongoing tension between the employer and the union over work being provided by a company that was not covered by the collective bargaining agreement.  The union did what many unions do, it requested information, and the employer responded.  The union then made a supplemental information request that asked for information about employees outside of the bargaining unit, and also requested additional information about bargaining unit employees.  The employer did not respond to this supplemental request, believing that it did not have to do so because the information sought was not relevant.

As the Board described it, “the union filed an unfair labor practice charge, triggering the Board Region’s investigative machinery and ultimately resulting in the complaint underlying this case.”  In the meantime the employer responded to the information request correctly pointing out that the union was not entitled to the information it sought about non-bargaining unit employees, and that it needed to provide a justification for the other information it requested.  Shortly before the hearing in the matter, the union admitted that the employer’s response was sufficient leaving only the question as to whether the delay in responding was a violation of the Act.

The two member Board majority concluded that the delay alone in responding alone was a violation, regardless of whether the information request was valid.   The Board appeared to rely on the fact that such violations concerning delay in response had been found in prior decisions:

As explained, the duty to provide information is a component of a broader duty to bargain in good faith under Section 8(a)(5) of the Act.  The issue in this case must be decided in that context.  The question here is not whether the Respondent had a duty to provide the information sought by the Union, but rather whether it had a duty to respond to the Union’s request in a timely way.  Board precedent, cited above, requires a timely response even when an employer may have a justification for not actually providing requested information.

It’s not a terribly surprising result given the existing precedent but one has to question whether this case was worth the resources to try.  The union, after all, admitted that it was not entitled to the information as the employer claimed, so the point in pursuing this charge to conclusion is dubious at best.  Indeed, an argument can be made the employer’s non-response was appropriate in the context of labor relations.

As employers often discover, the information requests are sometimes legitimate, and sometimes they are not.  Many times the union asks for information in a manner that is not conducive to productive collective bargaining by, among other things, making detailed requests that seem more suitable for civil litigation than labor relations.  Even when information is provided, employers are often met with a claim that “it is not enough.”  What can be particularly galling is when such information requests are made, time and money is expended in compliance only to discover that nothing is done with the information once it is provided.

Should parties in a collective bargaining relationship communicate regularly?  Absolutely.  However, this decision actually rewards the party seeking the information for not doing anything beyond making the request.  It exalts form over substance, and even though it is of a smaller nature in change, it is of questionable value for labor relations.  While a delay in response may be a legitimate “component” to the duty to bargain in good faith, and while the basis of the ruling is the “context” of bargaining, the decision in reality ignores the true context:  the union made a request for information it was not entitled to as a matter of law.  If it truly expected a response it should have had a continuing dialogue. There is no fact that suggests the union made any effort to follow up on its request before filing a charge a few weeks later.  If the information was crucial to some representation matter then why not follow up directly with the employer?  This is nothing more than a game of government sponsored “gotcha.”

The decision shifts the entire burden to the party receiving the request for information to respond or risk violating the Act.  The union’s failure to follow up on the request could just as easily be interpreted as it knew its request was not valid.   Member Hayes recognized the shift in the law in his dissent:

Ultimately, requested information is either legally relevant to a union’s representative duties, or it is not.  If it is not relevant, then the statutory duty to bargain in good faith is not implicated by the request or the employer’s failure to respond timely to the request.  None of the cases cited by the Acting General Counsel and my colleagues support their contrary view.  In each and every instance. the unlawful failure to respond or delay in responding involved a request for relevant information.

These types of disputes ultimately serve little purpose.  Yes, under the Act the union is entitled to request and obtain information necessary for its role as representative of the employees.  Its status should not be expanded to include the power to make irrelevant requests that now require a response under threat of law.

Of course, in the end, the decision should not be terribly impactful.  Employers may take some comfort in the knowledge that decisions like this should also apply equally to unions.  The Board has long held that a labor organization’s duty to furnish information pursuant to Section 8(b)(3) is parallel to that of the employer’s obligation to furnish information.  Firemen and Oilers, Local 288 (Diversy Winadotte Corp.), 302 NLRB 1008 (1991)  So, employers can invoke the Board’s “investigative machinery” to force a response to an information request.