One of the constant issues that employers must deal with concerning unions is this: “What information, in any form, do I have to give union representatives?” Of course, during an organizing drive, employers are required by law to provide the union with employee contact information. When a union represents employees, an employers’ natural inclination may be to “just say no” when the union requests information such as payroll records, handbooks or other information when there is a grievance or during arbitration. Unfortunately, that’s not an option because the NLRA, along with a variety of NLRB and administrative decisions, has determined when employers must say “yes” and when they can say “no.”
When the Union Requests Information
Recently, the case of Green Apple Supermarket of Jamaica, Inc. and United Food and Commercial Workers, Local Union 342, AFL-CIO (Case 29-CA-183238 and 29-CA-188130) addressed the issue of employer duties to provide information to unions. The synopsis of this case begins with a complaint filed by the United Food and Commercial Workers, Local Union 342, AFL-CIO against Green Apple Supermarket of Jamaica, Inc., a full service supermarket.
The supervisor in a small department was accused of violating Section 8(a)(3) of the National Labor Relations Act (NLRA) which addresses protected activity. The litany of violations the supervisor was accused of committing included telling the employees the business would close if they voted for the union, disciplining and/or terminating employees because they supported the union, refusing to bargain collectively and threatening employees with stricter enforcement of rules and wrongful terminations. Also on the long list of alleged violations was refusing to comply when the union requests information, deemed necessary for the union to exercise its rights as a collective bargaining representative.
Delayed but Delivered
This case seems to cover almost every way an employer can violate an employee’s NLRA rights. Addressing only the last item, employers naturally resist turning over their records. In this particular case, the Judge at an administrative hearing found the Green Apple Supermarket unlawfully refused and delayed turning over payroll records and time cards until the NLRB hearing forced their release. In an interesting twist, the NLRB reversed (366 NLRB No. 124) two of the judge’s findings that Green Apple violated the NLRA “Section 8(a)(3) by making unlawful threats and by more strictly enforcing work rules, and that it unreasonably delayed providing requested relevant information.” However, the supermarket was found to have violated the employer’s responsibility to furnish relevant information to the union.
You may find yourself in a quandary when a union requests information you consider private and proprietary. What are you required to give unions in the way of information and records? Your duty to furnish certain types of information is established in NLRA Sections 8(a)(1) and (5). These sections say it’s an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157” and to “refuse to bargain collectively with the representatives of his employees.” A long history of cases, beginning with NLRB v Truitt Mfg. Co., (351, U.S. 149(1956)) in 1956, have established acceptable and unacceptable employer behaviors in the real world.
Unions get a lot of leeway as to how and what information they can request. The information the union requests must be timely, relevant to collective bargaining and made in good faith. Records you must supply, if these conditions are met, include presumptive records or information related to things like wages, benefits, working conditions, work schedules and hours. Non-presumptive records or information may or may not be relevant to collective bargaining, depending on the union contract provision involved. For example, agreements with contractors may be non-presumptive information the union claims it needs.
In the Green Apple Supermarket case, the union requested information on employee healthcare, the employee handbook, written policies and procedures, leave time policies and records, copies of employment applications, names and rates of pay each employee is receiving in each store and names of any interested buyers that were pursuing purchase of the Jamaica store location. The union eventually requested additional items like emails shared among supervisors that concern the employees involved in the case, such as those explaining the reasons for an employee’s termination. When you get an information request, you can ask the union to provide clarification, if there are questions about relevance.
Keeping the condition of relevance in mind, union stewards also have a protected right to request information, even if contract negotiations are not ongoing. In the case of NLRB v ACME Industrial Co., (385 U.S. 432(1967)), the Supreme Court ruled that an employer must provide requested information to the union during a grievance procedure, if it’s necessary to evaluate the grievance.
It also based its decision on the fact the arbitration agreement in the union contract didn’t contain a waiver of the union’s statutory right to this kind of information. In this case, the employer moved equipment from one plant to another which impacted some union employees. The union requested information about the equipment, and the employer refused to give it, saying there was no contract violation in play. The union request for information included items like the reason for moving the equipment, the dates equipment was moved and where the equipment was moved to.
Monitoring the Employer
A union steward can always request information to monitor the employer’s compliance with the union contract. He or she can also request relevant information to investigate a grievance at any stage, prepare for a grievance meeting and prepare for an arbitration hearing. The unions often use these broad guidelines to back employers into a corner, so to speak. The United Steelworkers created a list of relevant items the union can request, and it is extensive. The Teamsters for a Democratic Union recommends that union representatives make detailed information requests in the hopes of forcing the employer to settle.
It is much less expensive, time consuming and frustrating to keep your business union free. You can try to refuse to give what you feel is irrelevant information to the union, but at what cost to your business? If your workforce is unionized, the best action to take is to make the union requests for information unnecessary by engaging employees, revising or strengthening any questionable Human Resources policies and procedures, and developing strong and informed leaders.