The National Labor Relations Board (NLRB or the Board) continues to force new requirements upon employers from all directions. The Board might say that its new requirements represent an effort at increased civility and common sense in the negotiation process, but the legal foundation for the ruling in IronTiger Logistics, Inc. is suspect.

In IronTiger Logistics, Inc., (October 23, 2012), the Board broadened the burden on employers in responding to union informational requests, all in the name of civility and efficiency. The Board concluded that although IronTiger Logistics, Inc. (IronTiger) did not violate the National Labor Relations Act (NLRA) by failing to provide irrelevant information requested by a union, it did violate the NLRA by failing to inform the union of its rationale for not providing the information in a timely manner.

IronTiger had an arrangement with a third-party trucking company, TruckMovers.com, Inc. (TruckMovers), and the International Association of Machinists and Aerospace Workers (IAM), the union which represented IronTiger’s own drivers. IronTiger and IAM entered into a letter of understanding whereby IronTiger could utilize both its unionized employees and TruckMovers’ employees to haul loads, without considering it a sub-contracting arrangement.

In this relationship, TruckMovers assigned the loads to both groups of drivers. IAM became suspicious of the distribution of loads and alleged that IronTiger was not complying with the provisions of the collective bargaining agreement. IAM filed a grievance on March 29, 2012, concerning the dispatch of the loads to TruckMovers’ drivers.

In the grievance, IAM contended that IronTiger was not placing all available loads on its dispatch board. As part of this grievance, on April 12, 2010, IAM requested information concerning all units of work dispatched to both the unionized drivers and the TruckMovers’ drivers for a six-month period. In response, IronTiger produced a list of units dispatched to both TruckMovers’ and IronTiger’s drivers.

Then on May 11, 2010, IAM requested supplemental information, consisting of 10 subparts, some concerning TruckMovers’ drivers, while others requested information about IronTiger’s drivers. These requests included information on the names of the drivers for each unit, their destination, mileage, and all relevant communications from customers about those units.

In response to this broad request, IronTiger did nothing. That is where the Board found them at fault. After receiving the requests, the IronTiger not only failed to provide any information, they failed to notify IAM of their reason for not providing the information. In fact, they did not respond to IAM in any way.

During this period, IAM filed an unfair labor practice alleging that the IronTiger had failed to bargain in good faith with IAM, violating Sections 8(a)(5) and (1) of the NLRA. The Board agreed with IAM in a 2-1 opinion. In doing so, the Board expanded the “good-faith” bargaining requirement beyond its traditional boundaries. Essentially, the Board explained that under Section 8(a)(5) of the NLRA, IronTiger was obligated to bargain with IAM in good faith in this situation, and it failed to do so.

Bargaining in “good faith” generally means that a unionized employer must provide, upon request, information that is relevant and necessary to the union’s performance of its duties as the employees’ representative. Per Board law, IronTiger must provide relevant information in a timely manner. In this case, the Board concluded that IronTiger’s failure to notify IAM of its intent not to respond to the information requests violated Section 8(a)(5) and (1) of the NLRA.

The key term here is relevancy. If the information was truly irrelevant, IronTiger had no obligation to provide information or even respond to the request because the requirement is limited to responses to “relevant” information requests. “Presumptively relevant” documents are also subject to valid information requests.

In this case, even though the information requests turned out to be irrelevant, because some of them were related to unit employees’ assigned loads, the Board concluded that they were “presumptively relevant,” and therefore, IronTiger had an obligation to inform IAM of its decision not to respond. The Board was clear that the “question here [was] not whether [IronTiger] had the duty to provide the information sought by [IAM], but rather whether it had a duty to respond to [IAM]’s request in a timely way.”

Board Member Hayes dissented, pointing out that the NLRA imposes no obligation upon an employer to provide requested information that is not relevant to a union’s performance of its responsibilities, and therefore, it imposes no obligation to respond to irrelevant requests. The Board concluded, over this objection, that such a response was a component of the “good faith” bargaining requirement and preferable to increased disputes between parties.

In light of this decision, employers should carefully analyze informational requests from a union. Employers should determine how best to respond in a timely manner to thorny information requests, so as to avoid unfair labor practices over this issue in the future.

Matthew J. Kelley is an associate in the Indianapolis office of Ogletree Deakins.