Responding to Information Requests
From time to time, the union will ask an employer for certain information or documents. When this happens outside of bargaining, information requests most commonly arise as part of a grievance or where the union believes a grievance may have occurred. The question then always arises how to respond to this request.
The following article gives a brief description of the law governing information requests and suggestions for how to respond when one is received. A memorandum on the duty to provide information during bargaining is available on SMACNA’s website.
What Does the Law Require?
Generally, under the Act, a union is entitled to relevant information that will help it perform its duties as the employees’ exclusive bargaining representative, which includes information related to (1) policing the collective-bargaining agreement; (2) grievance processing; and (3) collective bargaining. It is important to remember that the union also has a parallel obligation under the Act to provide the employer with relevant requested information. Either party’s failure to provide relevant information is an unfair labor practice.
Either party’s unjustified delay in providing relevant information is also an unfair labor practice.
Although it is clear that parties are obligated to provide “relevant” information, at times it can be difficult to determine whether or not the requested information meets this standard.
What Is “Relevant” Information?
The principles discussed above relate to the duty to provide relevant information. The NLRB is the final judge of relevancy, and generally divides information into two categories:
- Presumptively Relevant. Information regarding wages, benefits, and working conditions of bargaining unit employees is presumptively relevant. This means that the union does not need to establish relevance. The employer must provide this information, upon demand.
- Other Types of Information. To be entitled to other types of information, the requesting party must first establish the relevance of the information. This means that the requested information must be related to either (a) the bargaining process (b) policing the contract and/or (c) to a pending or potential grievance.
In determining whether the requested information is relevant, the Board uses a very broad standard. The inclination is to find it relevant, as the measurement is a “liberal discovery-type standard”, and the union only needs to demonstrate the “potential or probable” relevance of the sought-after information. This means that even if the information is not presumptively relevant, the union may have little difficulty establishing its relevancy.
How to Respond to a Request?
When confronted with such a request, it is still appropriate to request that the union explain the relevance of requested information before providing it, while assuring the union that if it can demonstrate its relevance, the employer will provide it.
This is also the time to raise any potential issues related to the burdensome nature of the request, potential cost sharing, and confidentiality concerns. If the information simply does not exist, the union should also be promptly advised of that fact.
Contractors should keep in mind that they are not obligated to conform with the unilateral deadline for responding to the information request that the union likely made. While an unjustifiable delay is not permissible, contractors are permitted a reasonable amount to time to respond. It is best if contractors acknowledge the request as soon as possible. If the information sought is presumptively relevant, the acknowledgement should indicate that they are working on determining what, if anything, is responsive and provide a time when a response will be forthcoming or if that is uncertain, that they will provide a timeline for production when it is determined.
Contractors are encouraged to contact their local SMACNA chapter executive for assistance in responding to requests for information from the union. SMACNA National’s labor relations staff if also available to provide assistance where necessary.