In Coupled Products, LLC, 359 NLRB No. 152, July 10, 2013, the Board reaffirmed long established case law where an employer need not disclose its financial books and records to a union when negotiating over terms and conditions of employment where the employer simply states it is unwilling to pay the economic demands of the Union versus it is unable to pay. The Administrative Law Judge and the three-person Board panel of Pearce, Griffin and Block do a good job of summarizing an up-to-date perspective of the law in this area, both by the Board and the courts. While the Acting General Counsel and the Union was pressing to obtain a Board order allowing the disclosure of the financial information based upon “the overall context of the negotiations,” neither the Administrative Law Judge nor the panel took the bait.

With that being said, in a footnote, the panel made it clear that they were concerned with the ongoing analytical debate between inability to pay versus unwilling to pay cases in which “parties become preoccupied with magic words, distracting them from genuine dialogue and information sharing which can lead to productive collective bargaining.” Accordingly the panel indicated that, in an appropriate case, they would consider how the Board has distinguished between these two types of cases and whether the current standards should be maintained.

In the economic climate that most employers have been dealing with since the economy took a downturn, concessionary bargaining has been fairly common. There is no doubt that in these situations unions in the future will take full advantage of the comments made in the above-referenced footnote in an effort to obtain leverage lost due to the economic conditions. Hopefully, the makeup of the Board will change such that this will not be a legitimate concern in the future, but it does give one pause regarding how there could be a change in the overall leverage of bargaining if there was a new standard established that rendered disclosure of such financial information more likely during concessionary bargaining.