We have often reported about how an employer’s failure to adequately respond to an information request made by a union can lead to unfair labor practice charges and litigation. Sometimes a union makes an information request for strategic reasons, not for any representational reason. Sometimes, an employer’s response can lead to further complications.
The same legal principles that obligate an employer to provide information in response to a union’s request apply equally when an employer seeks information from a union. In a recent decision affirmed by the Board, an Administrative Law Judge called a union to task for its failure to provide requested information to an employer, reminding us all that unions are held to the same obligations as employers when it comes to responding to requests for information. The decision is called UNITE HERE Local 1, 369 NLRB No. 65 (April 30, 2020).
The employer hotel corporation and the union have a 40-year bargaining relationship whereby the Union represents approximately 800 of the employer’s employees. Over the course of their long bargaining history, the union and the employer developed a grievance process that was memorialized in the parties’ collective bargaining agreement. Prior to taking his or her grievance to the employer, an employee will meet with a union representative to discuss the allegation. The union uses an internal grievance intake form to indicate the basis of the grievance. In addition to checking the appropriate boxes on the template intake form, the union representative will typically take additional notes and details about the grievance.
After the initial intake, the union will file the grievance with the employer’s labor relations representatives who then review the grievance and determine if the information contained in the grievance is sufficient to permit an investigation into the allegation. If the information is deemed to be insufficient to allow for an investigation, the employer will submit a request for information (RFI) to the union using a standardized form adjusted to meet the needs of the situation at hand. Generally, the RFI requests the union provide additional facts about the grievance and all documentation the union possesses related to the grievance, including notes taken by union representatives. The RFI requests that the union produce the requested information within a specified time period.
Employer’s RFIs and the Union’s Failure to Respond
At issue in the case was the union’s refusal to comply with the employer’s RFIs related to the multitude of grievances filed by the union between October 2017 and June 2018. Considering the numerous grievances and RFIs detailed in the ALJ opinion, it is clear that the parties’ relationship, at least as to the parties’ ability to effectively cooperate through the negotiated grievance process, had devolved into a rote and wholly-inefficient pattern.
The fact pattern routinely played out as follows. First, the union would submit a grievance to the employer with a brief, incomplete statement of the allegation underpinning the grievance. Feeling that the information provided would not allow the employer to complete an investigation into the validity of the grievance, the employer would submit to the union its standard RFI, requesting all facts, photos, videos, documents, names, dates, times, locations, and any other information pertaining to the grievance, including notes taken by the grievant or the union representative. The union would then reply with an identical statement of the alleged grievance, with an additional detail or two added to its original description. Again, feeling the information provided was still insufficient to permit an investigation into the grievance, the employer would renew its RFI.
In response to the employer’s renewed RFI, the union would submit what the ALJ referred to as the union’s “standard refusal”, stating that the union’s information is dependent on what the grievant is able to report to it and that the union will present more information beyond the initial grievance at each stage of the grievance process, up to and including arbitration. The standard refusal also would provide that the union will not produce its notes from the grievance intake process because they are protected under a labor relations privilege and the work product doctrine.
Finally, in contesting the union’s claim that it was unable and unwilling to submit information and that such information was privileged and confidential, the employer would demand that the union submit a privilege log identifying any communications or information the union had withheld on the basis of privilege. During the relevant time period, the union never produced a privilege log.
At the outset of her analysis, the ALJ stated that Board law is clear that a union’s obligation to furnish information under Section 8(b)(3) of the Act parallels that of an employer under Section 8(a)(5). As such, a union has a statutory obligation under the Act to provide an employer with relevant requested information to permit the employer to evaluate the merits of the grievance and to determine whether to settle the allegations or to proceed to arbitration.
In determining whether requested information is relevant, the Board has applied a liberal, discovery-type standard under which “[i]t is sufficient if the requested information is potentially relevant to the determination as to the merits of a grievance or an evaluation as to whether a grievance should be pursued.” Once an employer has established that the requested information is relevant, the burden shifts to the union to demonstrate that the information is not relevant, that it does not exist, or that there is some other valid reason why the information could not be produced.
In evaluating each of the employer’s RFIs, the ALJ found that each request was “sufficiently relevant and necessary for it to evaluate and investigate the grievance allegations; and prepare for the grievance-arbitration process that was initiated by the [union].” While the union did not dispute the relevancy of the RFIs, it objected to the requests on the grounds that they were made in bad faith, were unduly burdensome, and/or requested confidential information that was protected by a privilege.
The ALJ rejected the all defenses raised by the union :
- First, the ALJ found that the union did not submit sufficient evidence to establish that the RFIs were made in bad faith. Rather, the ALJ credited the employer’s testimony that any alleged change or formalization of the process by which the employer sought additional grievance information from the union was due to a dramatic increase in the number of grievances filed by the union and not an indication of bad faith.
- Second, the ALJ concluded that the requests were not overly burdensome and compliance would not disrupt the union’s normal business. But even if the union had established that the RFIs were unduly burdensome, the ALJ held that the union was still required to bargain with the employer about sharing these costs.
- Third, the ALJ rejected the union’s assertion that the information sought was protected under a labor relations privilege and protected under the work product doctrine. The ALJ concluded that the union failed to persuasively argue the basis of the alleged privilege or to point to Board precedent to support its claim. Even if the intake forms were privileged or protected under the work product doctrine, the underlying facts were not privileged and the union had an obligation to produce the facts relevant to the employer’s investigation into the grievances.
- Fourth, the ALJ found no evidence that the union engaged in accommodative bargaining with the employer in order to attempt to provide the requested information without sharing the allegedly confidential intake forms directly, which is a prerequisite when a party claims confidentiality over the information requested.
Finally, the ALJ rejected the union’s argument that the employer had enough information to understand the basis of the grievances and could have conducted an independent investigation for additional information. The ALJ reaffirmed that Board law is clear that “the fact that the requesting party is able to obtain information through other sources does not negate the requesting party’s right to get the information from the other party.”
The ALJ found that the union violated Section 8(b)(3) by failing to furnish the employer with the relevant and necessary information it requested. The ALJ clearly was not impressed with the union’s defense to these matters and held that as part of the remedy, all union representatives be required to undergo training on how to lawfully respond to employer information requests.
On appeal, the Board adopted all of the ALJ’s findings and recommendations with respect to the violations of law. However, the Board nixed the training of union representatives, deeming such a remedy to be extraordinary and unwarranted.
While the Board’s affirmation of the ALJ’s decision does not announce any new legal principle or reverse any Board precedent on a hot-button issue, the decision provides important practice tips. Here, an employer was faced with the filing of many grievances containing inadequate information as to the circumstances of the alleged contract violation. Grievance procedures often contain strict timelines requiring a response. The employer could not respond to the grievance due to the lack of information and asked the union in writing to provide more details. The union’s almost complete lack of response was sufficient to result in an easy finding of an unfair labor practice.
Intentionally vague or incomplete responses will not satisfy a union’s (or employer’s) duty to furnish information relevant to an ongoing or potential grievance. Neither unions nor employers can escape unfair labor practice charges for failing to cooperate with requests for information sought during grievance investigations when the party requesting the information is entitled to it under the Act. Finally, although often asserted, there is no privilege between union representatives and the members they represent.