Navigating Requests for Information by Unions
By Kevin M. Mosher • Sep 20, 2018
For those employers who (unfortunately) have unions representing their employees information and document requests are a fact of life. Employers are often left to wonder to what extent they are required to provide such information. This is a common question for employers looking at a laundry list of information requested from a union that may or may not appear to correlate with union-represented employees. Generally, an employer must provide information if it is relevant to its union employees or if the information is necessary to evaluate or verify the accuracy of claims by an employer during bargaining. An employer is not required to provide non-relevant information regarding non-union employees. An employer may ask for clarification if a union request is ambiguous or overbroad. Determining what is “relevant” for such requests employs a liberal interpretation and centers on the use of the information to the union in carrying out its statutory duties and responsibilities. Employers that fail to adhere to information requests when they are relevant may be in violation of the National Labor Relations Act (NLRA) and subject to penalties.
2018 NLRB DECISION SHEDS LIGHT ON AN EMPLOYER’S RESPONSIBILITIES
An August 27, 2018, National Labor Relations Board (NLRB) decision determined that a company violated the NLRA when it failed to turn over information to an employee’s union. The union was seeking information related to a supervisor’s conduct to help determine if one of its members was improperly fired. The union argued the information regarding safety violations and disciplinary actions issued to five supervisors was necessary to determine if an operator at the same facility as the supervisors was treated the same for safety violations that lead to his firing. The issue contemplated by the NLRB was whether the union had a reasonable belief supported by objective evidence that information relating to the safety violations and discipline issues to five supervisors was relevant, and whether that information would be of use in deciding whether to arbitrate the union employee’s discharge. Ultimately, the NLRB determined the legal burden to show the employee was not fired for safety reasons should be placed on the employer and the union had a reasonable basis for seeking the information requested.
TIPS FOR EMPLOYERS AND HR
While the above NLRB decision is not the lodestar of how similar situations may play out, it is beneficial to determine what the current NLRB considers when determining the relevance of requested information. As an employer, it may be necessary to put yourself in the shoes of the union and look at all possible angles of their request and if you can remotely see it relates to a union employee or claims made during bargaining, then it is likely that the NLRB will find it relevant.
If you have any questions regarding the NLRB decision above or would like to discuss specific situations you are experiencing with a union, please contact your Thompson Coe attorney at (651) 389-5000 or at myHRgenius@thompsoncoe.com. You can also find helpful information on unions and past NLRB decisions at https://myhrgenius.co/.
Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.