One of the first things a newly-unionized employer learns about collective bargaining is that the NLRB gives the union broad rights to demand (and receive) sensitive and even confidential information regarding the company’s business. Disclosure is required if the requested information is relevant to performance of the union’s responsibilities as the employees’ bargaining representative – even if that relevance is only “probable” or “potential.”
Petaluma Valley Hospital, NLRB Case 20–CA–88742 (March 26, 2013), offers a recent example how this happens to a health care employer. The union informed the hospital it would call a one day strike 12 days hence (advance warning of a strike is required only in the health care industry). A one day strike is a common tactic for a health care union – striking members lose only a day’s pay, but the hospital either must succumb to union bargaining demands or find replacement staff to meet patient care needs. Replacements, however, often are available from a temporary agency only for a minimum of several days – in this case, apparently, five days. Thus, the hospital told the union it could not permit the strikers to return to work for five days once they struck. (The engagement of temporary replacements represents a cost, but it can also serve as an employer’s counterbalance to the one-day walkout – employees who may be willing to forego one day’s pay may not want to lose five.)
The union demanded, among other things, a copy of the hospital’s temporary staffing contract, as well as any notes or correspondence regarding its negotiation by the hospital. The union claimed the information was needed in order to “evaluate” the employer’s statement that it had to guarantee the temporary agency five days of work. The hospital objected on several grounds, claiming (not surprisingly) that the union sought “confidential and proprietary business and/or financial information” and that the staffing contract was not relevant to the union because it did not relate to the terms and conditions of employment of unit employees.
The Board's administrative law judge found that the union’s request for the contract was relevant and necessary to its representation of employees because it was entitled to verify the employer’s representations – was there really a five day minimum in the contract? Moreover, the request for details concerning the hospital’s negotiation of the staffing contract was relevant to determining whether the five day minimum actually was a condition precedent imposed by the staffing company (or a strategic ploy by the employer).
The judge gave other reasons for his decision, as well, but the takeaway here is that Board law tilts decidedly toward mandating the disclosure of information an employer would naturally view as private. The ALJ gave short shrift to the hospital’s protestations that the information was “confidential and proprietary,” calling them merely “bare assertions.” The employer, said the judge, made no effort to “narrow the scope of the Union's request for information; nor did it discuss its confidentiality concerns, or possible methods of alleviating them.” While an appeal to the Board and a different result are possible, the judge's rationale is not inconsistent with recent NLRB decision-making.
An employer entering into collective bargaining should recognize that unions often use information requests for strategic reasons: to obtain sensitive information or merely to burden the company with time consuming demands. Refusals to respond can result in unfair labor practice charges being brought against the company.
An employer needs to prepare to deal with a union’s information requests, and perhaps even serve its own demands for information on the union. The information request stratagem is often not foreseen by employers. It is one of the reasons an employer should have a comprehensive plan for dealing with union negotiations – one that is not limited to conduct at the bargaining table alone.