The National Labor Relations Act generally requires employers to furnish information to unions if the unions’ requests are relevant to the administration or negotiation of a collective bargaining agreement. Much to employers’ chagrin, the National Labor Relations Board has historically adopted a liberal definition of what is “relevant.”
In a recent Advice Memorandum to one of its Regions, the Division of Advice, which is an arm of the Board’s General Counsel’s office, recently drew the line on certain COVID-19-related requests. In April 2020, a union representing the bellmen and airport shuttle drivers who work at the Crowne Plaza Hotel at O’Hare filed a grievance against the employer after it announced that it would temporarily close the hotel and lay off all of its employees.
The union made several requests for information in the course of bargaining over the effects of the decision, which included a request for information regarding “loans, payroll programs, or emergency funds . . . under the CARES Act.” While the hotel did provide the union with charts showing how the hotel’s occupancy rate had dramatically changed, it objected to the union’s request for financial information since unions are typically not entitled to receive financial information unless the employer has claimed an inability to pay as the reason for the decision that is the subject of the bargaining at issue.
In affirming the employer’s position, the Division of Advice distinguished between an employer’s decision to lay off employees “due to loss of business” as opposed to an “inability-to-pay.” Had the hotel made the latter claim, the Union would have been entitled to the information that it was requesting. However, absent an employer making an inability-to-pay claim, unions are not entitled to an employer’s financial information. Admittedly, a “loss of business” could eventually result in an “inability to pay,” and it is easy to see how some managers might blur the two when talking to the union, which is why care must be taken when responding to union information requests.
In addressing the union’s unfair labor charge against the hotel, the Division of Advice also reiterated two basic labor law principles that bear repeating. The employer’s decision to temporarily close the hotel due to a loss of business was an entrepreneurial business decision not subject to mandatory bargaining. However, even though the employer did not have a duty to bargain over the decision to close the hotel, it might still have an obligation to engage in “effects bargaining,” which could include topics such as severance pay.
