Employer must respond to union requests for ‘presumptively relevant’ info--but was it?
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Tuesday, May 24, 2016

Employer must respond to union requests for ‘presumptively relevant’ info--but was it?

By Dave Strausfeld, J.D. An employer may be held to violate its duty to bargain if it fails to timely respond to a union’s request for “presumptively relevant” information, even if the Board ultimately finds that the information was irrelevant, held the D.C. Circuit, on a petition for review of an NLRB order. But, on remand, the Board needed to explain why the specific requests in this case, which the employer insisted were overly burdensome and intended to harass it, were “presumptively relevant.” That is, the Board must consider “the implication of a rule that would permit a union to harass an employer by repeated and burdensome requests for irrelevant information only because it can be said it somehow relates to bargaining unit employees—without even a union’s statement of its need” (IronTiger Logistics, Inc. v. NLRB, May 20, 2016, Silberman, L.). Union requested information about over 10,000 shipments. The union had a rather contentious relationship with a shipping company. Believing that the company’s owner was redirecting shipping orders through another company he owned, in violation of a collective bargaining agreement provision preventing the subcontracting of work that the company’s employees could fulfill, the union submitted an information request on May 11. Among other things, the union asked for detailed information about over 10,000 loads carried by the company’s drivers, including drivers’ names, destinations, and mileage. At a meeting a short time later, the company’s attorney described the union as asking for “a lot of bullsh-t,” to which the union president replied, “Yes I am, but I need it,” without elaborating on why the information was needed. Company did not timely respond. When the company failed to respond to the request for over two months, the union filed a refusal-to-bargain charge. The matter eventually came before the Board, which agreed with the company that the information requested on May 11 was irrelevant to any bargaining issue between the parties. Nevertheless, because the requests for information about past loads hauled by the company’s drivers related to bargaining-unit employees, the requests were “presumptively relevant,” and therefore the company’s delay in responding was a refusal to bargain that violated Section 8(a)(5) and 8(a)(1) of the NLRA, the Board held (one member dissented). Board’s legal rule upheld. The company petitioned for review of the Board’s determination and the Board filed a cross-application for enforcement. Specifically, the company challenged the Board’s “rule” that an employer must respond in a timely fashion to a union’s request, even if the information is later ruled to be irrelevant. But the D.C. Circuit had “little difficulty” rejecting the company’s “broad-scale challenge” to the Board’s policy that the burden switches to an employer to respond to a union’s request for presumptively relevant information. In previous decisions, the appeals court noted, it had recognized only an obligation to timely respond to a union’s request for relevant information. But the court had “no basis to quarrel” with the Board’s extension in this case, to the proposition that an employer must timely respond to a request for presumptively relevant information, regardless of whether the information is ultimately judged to be relevant. “This is the sort of legal and policy determination to which we are obliged to defer,” the appeals court explained. Was request here “presumptively relevant”? But there remained the further question whether the union’s request for information in this case was presumptively relevant. To the appeals court, there appeared to be an “obvious defect” in the Board’s reasoning, “even if one accepts the breadth of its legal proposition that any information relating to the bargaining unit employees is presumptively relevant.” Case remanded. Specifically, the company here complained that the union was seeking to harass it by asking for obviously burdensome and irrelevant material—and the appeals court was inclined to believe the company’s complaint “may have been justified”—yet the Board never squarely responded to the company’s contention. “We think the Board must consider,” stated the appeals court in remanding the case to the Board for further proceedings, both the company’s defense and “the implication of a rule that would permit a union to harass an employer by repeated and burdensome requests for irrelevant information only because it can be said it somehow relates to bargaining unit employees—without even a union’s statement of its need.”

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