Labor & Employment Law Daily Chart of nonunit positions showed information requested by union—and withheld by employer—was relevant
Thursday, September 6, 2018

Chart of nonunit positions showed information requested by union—and withheld by employer—was relevant

By Ronald Miller, J.D.

In a case that has the NLRB’s Republican members bowing to a decision of the D.C. Circuit based on 50-year-old precedent, the appeals court held substantial evidence supported the Board’s finding that information requested by a union representing a college’s secretarial and clerical employees was relevant and that the college was obligated to provide it. The appeals court concluded that the union’s effort in canvassing the college and developing a chart of 34 non-bargaining unit positions it believed were performing bargaining unit work was sufficient support for an ALJ’s finding that it was reasonable to believe that unit work was being performed outside the unit. The appeals court granted the Board’s cross-application for enforcement of a finding that the college violated the NLRA by refusing to provide the union with the requested information. Judge Silberman filed a separate concurring opinion (Teachers College, Columbia University v. NLRB, September 4, 2018, Garland, M.).

Request for information. Since 2012, the union suspected the college of violating the parties’ collective bargaining agreement by transferring work reserved to the bargaining unit to non-unit employees. After communicating these suspicions during contract negotiations, the union filed a formal grievance with the college. In its grievance, the union requested a list of “all non-unit part-time, casual, hourly, temporary and internship” employees and, for each employee, his or her “name, job title/classification, department, rate of pay, work schedule, actual number of hours worked per week,” and ending dates.

Initially, the college said that it was in the process of gathering the information and would respond to the union’s request when that process was completed. But the college later changed its course, asserting that it believed that the union was requesting this information only “to support a charge of misconduct.” As such, the college contended that it had no obligation to provide the requested information.

Arbitration. Claiming that the CBA permitted the shared work responsibilities about which the union complained, the college denied the grievance. The union took the matter to arbitration. In January 2015, the arbitrator ordered the parties to agree on what information the college would provide the union to further facilitate proceedings.

You tell us. Following the arbitrator’s order, the union’s counsel sent the college’s counsel a more targeted request for information regarding non-unit positions it suspected were performing unit work. The college again refused to provide any information unless the union identified for each position “(i) the unit work allegedly transferred to such employees; (ii) the basis for the union’s belief that unit work had been transferred to such employees; and (iii) the alleged connection between the unit work and the information requested.”

The union made two further efforts to address those topics: first by a letter explaining at length why it believed the information requested was relevant to determining whether the college had impermissibly transferred work outside the unit, and second, by an updated request in more detail. On October 22, 2015, the union emailed a chart to the college asking it to provide the information related to the listed positions. Finally, the union filed an unfair labor practice charge with the NLRB. The ALJ concluded that the college violated Section 8(a)(5) and (1) when it refused to provide the union with the requested information. The Board affirmed the ALJ’s decision.

College’s challenge. On appeal, the college challenged the Board’s determination, contending the union had not met its burden to demonstrate the relevance of the information it sought. But the appeals court disagreed. Because the union sought information regarding employees outside the bargaining unit in order to determine whether the employer was improperly transferring work to them, the burden was on the union to demonstrate the relevance of the information. Thus, the union needed to explain to the employer why the information was relevant. However, the threshold for relevance is low. The union need not demonstrate the existence of some particular controversy or the need to dispose of some recognized problem. Rather, the D.C. Circuit applies a discovery-type standard, under which the fact that the information is of probable or potential relevance is sufficient to give rise to an obligation to provide it.

Non-unit positions charted by union. Relying upon information received from union members who canvassed the college in October 2015, along with job postings, and other documents in the union’s possession, the union identified 34 non-unit positions it believed were performing bargaining unit work. It then compiled this information in a chart and emailed it to the college. The email stated the union’s belief that the college had improperly transferred bargaining unit work to employees in those positions.

The appeals court concluded that the chart, and the work the union undertook to construct it, provided sufficient support for the ALJ’s finding that the union had, and presented to the college, a reasonable belief that unit work was being performed outside the unit—a concern that was directly related to its grievance. The court observed that the union’s October 22, 2015, email asked the college to provide certain information for each of the 34 positions listed in the chart. Accordingly, the court concluded that it was obvious that this kind of information was relevant to processing the grievance and preparing for arbitration on the issue, both of which are central to the union’s “carrying out its statutory duties and responsibilities.” It denied the college’s petition for review and granted the Board’s cross-application for enforcement.

Concurrence. While Judge Silberman was in full agreement with the court’s reasoning here, he wrote separately to contest the reasonableness of the Board’s view expressed in Piggly Wiggly Midwest, LLC . The Board there said that although a union seeking information concerning non-bargaining unit activities must have a factual basis to support the relevance to the bargaining unit of that information, it need not disclose those facts to the employer. Instead, it was sufficient that the General Counsel present those facts at an unfair labor practice hearing. Silberman found it problematic that an employer must accommodate a union’s request for non-bargaining unit information if it is relevant, but a request can be legitimately refused if the union has no factual basis for asserting the relevance. That decision must be made at the time of the union’s request, and if the employer is wrong, it violates the law. Thus, Silberman found it absurd for the Board to hold that an employer can be retroactively determined to violate the NLRA by virtue of factual evidence put first by the General Counsel, arguing that this raised a due process issue.

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