The National Labor Relations Board has reminded employers once again that there is a right way and a wrong way to object to union information requests on the grounds that the information sought by the union is irrelevant, unduly burdensome, overbroad or confidential. The Board revisited this issue recently in Salem Hospital Corp., 359 NLRB No. 82 (March 22, 2013). In short, the Board’s message is: raise such objections quickly, couple the objection with an explanation, and offer an accommodation. Anything short of this may lead to an unfair labor practice finding against the employer.
Unlike oft-asserted defenses by employers to plaintiffs’ discovery requests in employment litigation, employers’ claims that union information requests are irrelevant, burdensome, overbroad, or seek confidential information are scrutinized under a tough standard by the NLRB. These objections will not pass muster unless the employer understands some key points and takes certain steps:
- The definition of “relevant” under the National Labor Relations Act is very broad.
A union is entitled to information needed for contract negotiations, to evaluate grievances, and the catch-all, “for contract administration.” All information related to bargaining unit employees and their terms and conditions of employment is presumptively relevant.
- Rarely claim as an initial response that requested information is irrelevant.
When responding to an information request, asserting as a first response that requested information is irrelevant – whether as a delay tactic or in the hopes that the union will drop its request – is a risky move. Merely taking the position that presumptively relevant information is irrelevant can lead to an unfair labor practice finding. Where information requested is not presumptively relevant, the best course of action still is not to immediately claim “irrelevancy,” but rather to respond with a statement that the employer “does not understand the relevancy of the request.” This puts the burden on the union to establish relevancy, while at the same time not constituting an outright, and perhaps premature, refusal to provide information.
- Objections must be raised in a timely fashion.
A delay in responding to an information request is just as much a violation of the National Labor Relations Act as not responding at all. Further, a delay in raising objections to requested information may result in the employer losing valid confidentiality, burdensome, overbroad, and irrelevancy objections. The Board so found in Salem Hospital, where the employer waited months before raising such objections.
- Explain the objection.
As stated in Salem Hospital, an employer must not only timely raise objections, but also must “substantiate its defense.” In other words, merely stating that a request is overbroad, unduly burdensome and the like is not enough. An employer must explain the reason for the objection. If the objection is “unduly burdensome,” explain, for example, how many hours would be required to gather the information. If the objection is “overbroad,” explain why the information sought goes beyond the union’s stated need for it.
- Don’t assume that there is a valid confidentiality objection.
Employers sometimes assume, as the employer in Salem Hospital did, that certain types of requested employee information, such as medical information, can be objected to on the grounds of confidentiality. But it is important to remember that some statutes, such as HIPAA (the Health Insurance Portability and Accountability Act), have been interpreted or contain provisions which allow disclosure of medical information, without authorization, if done pursuant to the NLRA. Thus, a confidentiality objection in such a situation would not be valid.
- Offer an accommodation.
Rarely will raising a timely objection and explaining the basis for that objection be sufficient in the Board’s eyes for meeting an employer’s obligations under the Act. The employer also must offer an accommodation if it objects to providing relevant information. For example, if the objection is “confidentiality,” consider offering to produce the information after sensitive data is redacted, or after the union agrees to a confidentiality agreement limiting the use and dissemination of the information. If the objection is “unduly burdensome,” consider offering to provide snapshots or a sampling of requested information, or consider offering to hire temporary personnel to gather the information if the union assumes or shares in the cost. Even information that is objected to on the basis of irrelevancy may warrant an offer of accommodation. If information requested contains both irrelevant and relevant information, offer to produce the information with irrelevant information redacted.
Unfair labor practice findings against employers due to a failure to appropriately assert objections to union information requests are all too common, although they easily can be avoided. The potential ramifications for failing to appropriately respond to a union information request can be quite serious: a finding against the employer by the NLRB of bad faith bargaining, the inability to declare impasse in bargaining, and converting an economic strike into an unfair labor practice strike, to name a few. Following the above steps will help avoid these problems.