[author: David P. Phippen]

Last week, a panel of the National Labor Relations Board, in a 2 to 1 vote that has become routine, found that an employer had a duty under Section 8(a)(5) of the National Labor Relations Act to respond in a timely fashion to a union request for information, even if the request sought "presumptively relevant" information that was later determined to be irrelevant to the union's representational role. Chairman Mark Gaston Pearce and Member Sharon Block, the panel majority, ruled that the employer's duty to bargain in good faith did not allow it simply to ignore or delay responding to such a union request. Rather, the employer "was required to timely provide that information or to timely present the [u]nion with its reasons for not doing so," the majority said.

The Case and Majority Decision

The International Association of Machinists and Aerospace Workers, AFL-CIO, represented employees in a bargaining unit at IronTiger Logistics. Another company, TruckMovers, Inc., had common ownership, but all parties agreed that IronTiger and TruckMovers were not alter egos or a single employer. The union and IronTiger had entered into an agreement that loads assigned by TruckMovers to its own truck drivers were not unit work covered by the collective bargaining agreement between IronTiger and the union. A dispute over dispatching of loads arose. As a result, the union filed a grievance and made an initial information request, in response to which IronTiger provided information.

The union then made a supplemental request seeking information about load assignments. Some items sought information related to past work by bargaining unit employees, but some requested information related only to TruckMovers employees' work. IronTiger failed to respond promptly to the union's supplemental request, and approximately two months after the request the union filed an unfair labor practice charge with the Board alleging that IronTiger was violating Section 8(a)(5) of the Act by not responding to the request. Several weeks later the union repeated the supplemental request. Approximately four and a half months after the supplemental request, IronTiger responded to the request by asserting that information related to non-unit employees was not relevant, questioning the relevancy of the information related to unit employees, and contending that the request was "harassment, burdensome, and irrelevant." IronTiger, as it had done several times previously, offered to meet with the union in an attempt to resolve the matter. The union failed to respond to that offer to meet.

A complaint was issued at the Regional level, and a hearing before a Board administrative law judge was scheduled. Shortly before the hearing, the union confirmed to the Board that IronTiger had sufficiently responded to the information requests with the letter challenging the relevance of the requests. Thus, the only question before the administrative law judge was the lawfulness of IronTiger's delay in responding to the request for "presumptively relevant" information for which the presumption of relevance was ultimately rebutted.

Despite agreeing with IronTiger that the information the union had sought was irrelevant, the ALJ found that IronTiger had violated Section 8(a)(5) of the Act by waiting more than four months to respond to the request for information that was "presumptively relevant" when made. The ALJ recommended that the Board order that IronTiger cease and desist from "failing and refusing to respond to information requests" by the union, but he did not recommend an order directing IronTiger to provide any information.

On review, the NLRB panel majority largely adopted the ALJ's decision and reasoning, finding that the employer had violated the Act by failing to respond in a timely fashion to the union's information request. The majority, as a foundation of its decision, recited the well-established principle that a unionized employer has a duty to provide information that is relevant and necessary to the union's performance of its duties as representative of employees. Further, the majority stated that the Act "requires a timely response even when an employer may have justification for not actually providing the requested information." Largely skirting over the fact that the information sought was ultimately determined to be irrelevant to the union's representational role, the majority found, as had the ALJ, that the information was presumptively relevant when it was initially requested. Then, drawing on decisions requiring timely responses to requests for information that was actually relevant, the Board held that employers must also respond in a timely manner to requests for information that was only presumptively relevant. According to the majority, the employer "was required to timely provide [the] information or to timely present the Union with its reasons for not doing so."

The majority noted that the duty to provide information to a union is a component of the broader duty to bargain in good faith under Section 8(a)(5) of the Act. "The question here is not whether the [employer] had a duty to provide the information sought by the Union," the majority said, "but rather whether it had a duty to respond to the Union's request in a timely way." The majority found that there was such a duty, "even when an employer may have a justification for not actually providing requested information."

According to the majority view, it is reasonable for a union to expect production of presumptively relevant information, and "good faith" requires an employer to respond promptly with reasons for not providing it. In the Board majority's view, placing what it calls a "minimal burden" on the employer is appropriate because it is in a "clearly superior position" to avoid a dispute over a request. In this case, the majority said, such a dispute "no doubt … could have been avoided." In reaching this conclusion, the majority failed even to mention the fact that the employer had offered multiple times to meet with the union to resolve the dispute and that the union had rejected or ignored such offers.

The Dissent

In making its decision, the majority cast aside the argument of Member Brian Hayes, the sole Republican on the panel, that the Act required the employer to respond only to a request for "relevant information." According to Hayes, "Until today, the Board has never held that there is an independent statutory duty to respond to a request for presumptively relevant information, even if the presumption is rebutted in litigation." Hayes said that the Act did not impose a duty on an employer to respond to a union request for irrelevant information and that the majority's holding simply gives unions the opportunity to "hector employers with information requests for tactical purposes that obstruct, rather than further, good-faith bargaining relationships."

Analysis

The IronTiger decision appears to be a further attempt by the Board, as currently constituted, to tilt the playing field further against employers, limiting employer options. Before this decision, an employer sometimes decided for a variety of reasons not to respond to union requests for information that the employer considered irrelevant. Sometimes the employer would determine that the information was too burdensome to provide and might choose to ignore the request instead of explcitly objecting in an attempt to let "sleeping dogs lie." Other times, the employer might view the request as harassing and an attempt to make the employer's "life hell," as the employer in IronTiger contended.

Whatever the reason, if the employer was correct and the information was irrelevant, then it was not unlawful to have ignored the request, as Member Hayes pointed out in his dissent.

But now, it will be more risky for employers to ignore union requests or delay in responding – at least, with the present Board and when the request seeks information that is relevant or presumptively relevant, or a combination of the two. And it takes little imagination to see this Board extending the rule of IronTiger to all union requests for information, even those that seek wholly irrelevant information.

Few employers want to be bothered with an unfair labor practice charge and find themselves in the crosshairs of the NLRB. An unfair labor practice finding can have significant consequences for an employer, particularly if a strike or lockout situation is in the picture.

Fortunately, avoiding the obvious problem created by the IronTiger decision appears to be relatively easy. All an employer has to do to satisfy the IronTiger rule is (1) make a timely response to a request for information that the employer believes is irrelevant and (2) raise the relevancy issue in the response. (Employers who handle employment litigation will be familiar with this practice, which is comparable to that regularly used in discovery under the rules of civil procedure.) That having been said, a timely objection will not necessarily shield an employer from a Section 8(a)(5) charge and violation if the requested information is ultimately found to be relevant, so employers will want to be judicious in asserting objections on this ground.

There is no question that IronTiger will have a dramatic impact on an employer's decisionmaking process in responding to union requests for information. If you have any questions about the ramifications of this decision, please contact any member of Constangy's Labor Relations Practice Group, or the Constangy attorney of your choice.