[authors: Alexandra Bak-Boychuk, Daniel V. Johns]
A National Labor Relations Board panel recently found that an employer has a good-faith duty under the National Labor Relations Act to respond in a reasonably timely manner to a union request for “presumptively relevant” information—even when the employer believes it may have actual grounds for not providing that information. This decision expands the duty of employers by holding that they must respond to requests for what may be irrelevant information.
The case, IronTiger Logistics, Inc., arose from a dispute about the apportionment of freight delivery assignments between IronTiger and TruckMovers, two transportation firms that shared common ownership. The union represented IronTiger’s drivers but not TruckMovers’ drivers. After filing a grievance concerning the dispatch of loads to TruckMovers’ drivers, the union requested information related to all units of work dispatched to both companies’ drivers. Four and a half months passed before IronTiger even acknowledged the request, claiming generally that it was “harassment, burdensome, and irrelevant.” By then, the union had filed an unfair labor practice charge because IronTiger had provided no response.
In a 2-1 vote, the Board affirmed the Administrative Law Judge’s (ALJ) holding that IronTiger had violated Section 8(a)(5) of the Act by failing to respond in a timely manner to the union’s request for information. The Board began with the well-established premise that “a unionized employer must provide, on request, information that is relevant and necessary to the union’s performance of its duties as collective bargaining representative.” The Board further stated that “an employer must timely respond to a union request seeking relevant information even when the employer believes it has grounds for not providing the information.”
Significantly, the ALJ had determined that the information sought was ultimately irrelevant to the union’s representational role. The Board, however, skirted over this determination and found that employers have a duty to respond in some manner to requests for “presumptively relevant” information, meaning information broadly related to bargaining-unit employees. Even in light of this presumption, the Board opined that the duty to respond promptly places a minimal burden on the employer and enables the parties to resolve disputes and avoid litigation costs and the disruption of collective bargaining.
In his dissent, member Brian Hayes took issue with the majority’s expansive approach to “presumptively relevant” information. According to Hayes, “[u]ntil 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 further wrote that the majority’s holding will embolden unions to “hector employers with information requests for tactical purposes that obstruct, rather than further, good-faith bargaining relationships.”
In light of this decision, employers will assume increased risk when they elect not to respond to union requests for information, even if they deem the requests irrelevant. To avoid the potential pitfall of an unfair labor practice charge, employers must make a timely response to a request for information that the employer believes is irrelevant and raise the relevancy issue in the response. Employers should make judicious use of the irrelevancy objection, however, due to the “presumptive relevance” of information concerning bargaining-unit employees.
Ballard Spahr’s Labor and Employment Group routinely assists employers in the decision-making process when responding to union requests for information. If you have questions or concerns regarding NLRB compliance in this context, please contact Daniel V. Johns at 215.864.8107 or firstname.lastname@example.org, Alexandra Bak-Boychuk at 215.864.8123 or email@example.com, or the member of the Labor and Employment Group with whom you work.