Better Not Keep the NLRB Waiting!

If you think a request for information from the National Labor Relations Board is irrelevant and you have more important things to worry about … and you’ll just let it sit awhile … better think again.

An NLRB panel recently found that an employer had violated the National Labor Relations Act by failing to respond in a timely manner to a union’s requests for information, even though — as this alert from Barran Liebman points out — “the NLRB ultimately determined that the request for information was, as the employer argued, irrelevant … .”

In short, the board found — in its Oct. 23 ruling in the case of IronTiger Logistics Inc. and International Association of Machinists and Aerospace Workers, AFL-CIO — that an employer has a good-faith duty under the NLRA “to respond in a reasonably timely manner to a union request for ‘presumptively relevant’ information—even when the employer believes it may have actual grounds for not providing that information” — this from another alert from Ballard Spahr.

“This decision,” it says, “expands the duty of employers by holding that they must respond to requests for what may be irrelevant information.”

For the record, and for a complete understanding of the NLRB’s reasoning behind the decision, this link takes you to the actual ruling. (Scroll to the free PDF download marked Oct. 23.) As the ruling states: “The Respondent was obligated to inform the union in a timely manner that it would not provide the information and the reasons for its refusal. An employer cannot simply ignore a union’s information request.”

According to Ballard Spahr’s rundown of the case,

[It] arose from a dispute about the apportionment of freight-delivery assignments between IronTiger and TruckMovers, two transportation firms that shared common ownership. The union represented IronTiger’s drivers but not TruckMovers’ drivers. After filing a grievance concerning the dispatch of loads to TruckMovers’ drivers, the union requested information related to all units of work dispatched to both companies’ drivers. Four and a half months passed before IronTiger even acknowledged the request, claiming generally that it was ‘harassment, burdensome and irrelevant.’ By then, the union had filed an unfair labor practice charge because IronTiger had provided no response.

In a 2-1 vote, the Board affirmed the Administrative Law Judge’s (ALJ) holding that IronTiger had violated Section 8(a)(5) of the [NLRA] by failing to respond in a timely manner to the union’s request for information. The Board began with the well-established premise that ‘a unionized employer must provide, on request, information that is relevant and necessary to the union’s performance of its duties as collective-bargaining representative.’ The Board further stated that ‘an employer must timely respond to a union request seeking relevant information even when the employer believes it has grounds for not providing the information.’

In other words, the NLRB ruled that, because the union’s request for information involved unit employees, it was “presumptively relevant,” entitling the AFL-CIO to a response within a reasonable time. It didn’t define a “reasonable time,” but — says Barran Liebman — “made clear that 4.5 months exceeded this perimeter significantly.” That alert goes on:

In dissent, one board member argued that the majority’s ruling gives unions the latitude to ‘hector employers with information requests for tactical purposes that obstruct, rather than further, good-faith bargaining relationships.’

While this opinion governs an employer’s obligation to respond only to a ‘presumptively relevant’ request, it serves as a reminder to employers to pay attention to their response times. An internal deadline of 30 days to respond is prudent, even when the employer’s response simply explains why a particular request is irrelevant.