Executive Summary: In a case handled by FordHarrison attorneys, the National Labor Relations Board (NLRB) General Counsel recently held that an employer was not required to provide information regarding the non-bargaining unit employees of a separate subsidiary to the union representing its employees. Dismissing unfair labor practice charges filed against the employer, the General Counsel held that the union failed to present objective evidence that the two subsidiaries were acting as a single employer; accordingly it was not entitled to information on the non-bargaining unit employees. See ABM Indus., Inc., NLRB Div. of Advice, No. 18-CA-136876 and 19-CA-124390, April 8, 2015, (released April 22, 2015).

The National Labor Relations Act's statutory duty to bargain in good faith requires employers to provide relevant information to a recognized union upon request. The union's right to such information arises out of its status as the bargaining unit's exclusive bargaining agent. The standard for determining relevance is a liberal one generally equivalent to the standard applied to discovery in federal and state court litigation.

Case law precedent clearly establishes that information requests relating to bargaining unit employees are presumptively relevant. Conversely, the Board has held that information requests relating to persons or subjects outside the bargaining unit may be relevant but, unlike those involving subjects directly linked to bargaining unit employees, are not presumptively relevant. Put another way, when dealing with information requests relating to non‑unit employees, the union must present specific grounds regarding why non‑unit information is relevant to the union's duty to represent the bargaining unit employees as their exclusive bargaining agent.

While both the NLRB and its current General Counsel have taken action supporting the position of organized labor, the Board's General Counsel recently rejected efforts by the Service Employees International Union (SEIU) to obtain information relating to non‑unit employees.

The case involved ABM Industries, a major property maintenance enterprise operating through various subsidiaries, one of which is Air Serv Corporation. Air Serv provides various services to commercial airlines, including cargo, cabin cleaning, ground transportation, and security services. The SEIU has existing bargaining relationships with several ABM subsidiaries long predating ABM's purchase of Air Serv. These bargaining units include employees working at the airports in Seattle and Minneapolis. Air Serv also has operations at those airports. At those locations, the union sought information from the two ABM subsidiaries with which it had bargaining relationships regarding bargaining unit employees as well as information regarding Air Serv and its employees.

In both locations, SEIU asserted that Air Serv and the ABM subsidiary were a "single employer" and that, therefore, the Union was entitled to specific employee information relating to not just the ABM employees, but also the Air Serv employees. The ABM subsidiaries provided information about their own employees, but because they are separate companies, they stated that they did not have any Air Serv documents or other specific information regarding Air Serv employees.

The union filed separate unfair labor practice charges against the two ABM subsidiaries claiming that they engaged in bad faith bargaining by refusing to provide the union with information regarding Air Serv and its employees.

After an initial investigation of these charges, an unfair labor practice complaint was issued in the Seattle case. The Minneapolis charge was sent to the Board's Division of Advice for further review and analysis. Subsequently, the unfair labor practice trial in Seattle was indefinitely postponed so that the Division of Advice could review both of these cases together.

On April 8, 2015, the Board's Division of Advice issued an "Advice Memorandum," in which it directed the Regional Directors in Seattle and Minneapolis to dismiss both unfair labor practice charges.

The Division of Advice concluded that there was no merit to either charge because, in each case, SEIU had failed to present "objective evidence" that the subsidiary and Air Serv were operating as a single employer.  As noted above, where the requested information relates to non‑unit employees, the union must demonstrate that the information requested is necessary and relevant to the union's status as the employees' exclusive bargaining agent. In the case where a union is asserting single employer or alter ego status, the union's burden is to demonstrate some objective evidence that the two entities are acting as a single employer. The union is not required to present evidence that would legally establish the existence of a single employer or alter ego status, but it must proffer some evidence supporting such status. The Division of Advice concluded in both cases that the union had failed to meet this standard.

In the Seattle case, the Division of Advice concluded that the information sought by the union regarding Air Serv (e.g., names, addresses, job classifications, wage rates, and work locations) was not even the type of information that would assist in reaching a single employer/alter ego status. Additionally, the union's claim that Air Serv employees were performing janitorial work was deemed insufficient since it presented no evidence that this was work previously performed by ABM janitorial employees.

The Division of Advice reached similar conclusions relating to the Minneapolis charge. There the union had asked for information relevant to a single employer/alter ego status. However, the Division of Advice concluded here as well that the union had failed to present any objective evidence that Air Serv employees were performing bargaining unit work.

The General Counsel's actions reaffirm that there is no presumption of relevance where non‑bargaining unit information is being requested. Where the information sought relates specifically to a claim of single employer or alter ego status, the union's request need not be met unless the union can demonstrate that there are some specific facts or evidence supporting its belief that two or more employers are operating as one.