The National Labor Relations Board held that the employer did not violate Section 8(a)(5) of the National Labor Relations Act by refusing to provide general financial information requested by the union, where there was no claimed inability to pay.
In PSAV Presentation Services, Inc., the Board found that an employer negotiator's statement at bargaining that the union's initial wage proposal would be "suicide" for the company, and would put the company "underwater," constituted a claim of inability to pay, which would typically obligate the employer, upon request, to provide the union with general financial information. In this case, however, the Board concluded that the employer retracted its claimed inability to pay, clarifying that it was refusing only to pay a rate detrimental to the business, thereby obviating its obligation to provide the union with general financial information.
The Board did find, however, that the employer violated Section 8(a)(5) of the National Labor Relations Act by failing to produce specific financial information to the union. The information sought by the union was relevant to assessing specific claims made by the employer to justify its rejection of the union's wage proposal, including statements about employer agreements with hotels and commission payments. The Board also noted that the information would assist the union in formulating wage counterproposals by helping the union to better understand the employer's business model.
The takeaway here is that employers should avoid making statements that may be construed as claims of "inability to pay." If, however, an employer makes such a statement, it should quickly retract the statement and clarify that it is merely asserting an unwillingness to pay what the union is seeking. Finally, where an employer cites specific reasons in support of rejecting a wage proposal, it should be prepared to produce information in support of those claims in order for the union to assess these claims.