Under the Board's Dubuque Packing Co. framework, an employer is not required to bargain over a plant relocation if union concessions on labor costs could not persuade the employer to change its decision. Because the relocation is not a mandatory subject of bargaining, under these circumstances the employer is not required to provide a union with requested information about the decision to relocate. (The employer is, however, required to bargain over the effects of the relocation, even if it does not have to bargain over the decision.)
In Embarq Corp., Liebman, Becker, and Hayes agreed that the company was not required to bargain about its decision to close a call center and relocate the work to Florida, but Liebman said she would be open to considering whether the Board should require employers to provide incumbent unions with requested information whenever there was a "reasonable likelihood" that labor-cost concessions might affect the decision. Liebman wrote that "in a future case, I would be open to modifying the Dubuque framework in connection with union requests for information."
Liebman's language is cautious, but the Board's actions seem to point toward another foregone conclusion that will be adverse to employers. The regional labor board offices have been notified that Acting General Counsel Solomon wants to examine the "concerns" raised by Liebman in Embarq and determine whether to propose a new standard in cases involving this kind of information request. The regions have been directed to submit to the NLRB's Division of Advice all cases presenting the issue of whether an employer violated the Act by refusing to provide information related to a relocation or other decision covered by Dubuque Packing.
It takes no imagination to see where all this is going.