The NLRB General Counsel’s Office has issued a memorandum ordering regional directors to send to the Division of Advice all cases involving information requests related to relocations and other business decisions analyzed under Dubuque Packing Co., 303 NLRB 286 (1981). The Acting General Counsel is looking for a case or cases to send to the Board so it can consider whether to change an employer’s obligation to provide information to the union regarding business relocation decisions. This memo comes on the heels of Chairman Liebman’s concurrence in Embarq Corp., 356 NLRB No. 125 (2011), where she expressed her concern with the current state of the law under the Dubuque Packing test and suggested an alternative approach to handling union information requests.
In her concurring opinion in Embarq, Chairman Liebman stated that she felt there is an anomaly in the Dubuque Packing analysis because it does not “compel the production of information at the time when it is sought [by the union] . . . .” The Chairman suggests that a better approach would be for the company advise the union whether the relocation plan “turns on labor costs.” If it does, then the employer would be obligated to provide the union with information regarding labor costs and “advise” whether it believes the union “could make concessions that could change [the employer’s] decision.” This would, in the Chairman’s view, eliminate “after-the-fact” assessments based on “guesswork” which is unhelpful to either party. She indicated that she would be willing to revisit Dubuque Packing in a later appropriate case.
Acting General Counsel, unsurprisingly, did not let any grass grow under his feet on this one. In the memorandum to the field, Associate General Counsel Richard Siegel – speaking for the Acting General Counsel – said: “The General Counsel wishes to examine the concerns raised by Chairman Liebman in Embarq, and determine whether to propose a new standard in cases involving these kinds of information requests. That determination will be made based upon a case-by-case review of submissions to the Division of Advice.”
As discussed in a previous blog post on Chairman Liebman’s concurrence, her proposed alternative approach to information requests would be a significant departure from the current state of the law. Such a change by the Board might improve the process in some cases, but it could also significantly burden decision making in situations where a union simply seeks to delay a relocation, even if there is no genuine ability or desire to make needed concessions in bargaining.
Of course, this effort at the Board is only at the case-identification stage, so any change in the law must await further developments.