Normally, by the time an issue has been processed through the various steps of the grievance procedure, both parties know what the facts and relevant documents are prior to the arbitration. But sometimes that process breaks down and the parties fail to fully develop the factual foundation prior to the arbitration hearing. Then the union may come knocking at your door requesting information. Sometimes these information requests are short and to the point, and some of them, quite frankly, are fishing expeditions.

If they are short and to the point, and it is material that the company is going to use as part of their case in chief, I have no problem sharing that information with the union prior to the arbitration. Indeed, sometimes, the sharing of that information even leads to settlement discussions. But if the request looks more like a fishing expedition, I am more likely to dig in my heels. And while the union may quote the National Labor Relations Act as authority for them obtaining such information, the Board has made it clear that the NLRA is not a mechanism for pre-arbitration discovery. That being said, I also realize that an arbitrator does not like, nor should the company appear to be, playing hide the ball regarding relevant facts. Hence the first thing I do is normally contact the union representative and find out what they really need in the way of information and try to reach a compromise resolution. At least at that point the company will appear reasonable in front of the arbitrator if the matter ultimately is not resolved by the time of hearing. I also make it clear, and establish in writing, that just because the company is providing the information in this particular instance does not mean that they are going to provide it in the future in a similar context. And while I realize there are certain statutory provisions in the law that provide for a subpoena process, such as the Missouri Arbitration Act, unions almost uniformly fail to utilize those provisions, or frankly, blotch the procedures and requirements under the statute in attempting to obtain the information.

Bottom line, just be practical about the matter. There is no reason to give away the farm, but there is also no reason to appear difficult and come off as the “bad guy” in front of the arbitrator. There are usually ways of coming to an appropriate and reasonable resolution to such information requests so long as you follow the guidelines as set forth above.