TEN-HUT, unionized employers! In the 21st century, information requests mean battle.
Sometimes, information requests are simple and short. Other times, they are 35 pages long with 150 separate requests, 12 subparts each, including everything but requests for the blood type and astrology signs of all your managers since 1992. Either way, there is a military discipline for handling them.
- Know the rules of engagement: What does “the law” require you to do? Once a union has made a request for information for bargaining or administering the contract, the National Labor Relations Act requires “good faith” efforts to respond and supply the same in a timely manner absent a legally-cognizable excuse (e.g., the information doesn’t exist; it is privileged; etc.).
- Survey the field: Why was it sent? Context is critical. Sometimes, the request is genuinely for information (e.g., a request for the grievant’s formal discipline letter). Yet, requests can also be an attempt to set the stage for a ULP. In those situations, don’t wait for the declaration of war: document and explain to the union what you are able to provide (or not) and why: you are writing the trial exhibits that will prove or disprove whether you fulfilled your statutory duty.
- Assess the threat: What does it mean? The employer’s only duty is to respond to the actual request, as it was made. The employer is not required to play mind reader, unless it wants to. For example, a request for “all hours reports” could be interpreted as a request for hours reports for bargaining unit members in the past year or since Noah grounded the ark. If you explain and provide the info for the current calendar year, it is then on the union to renew or reframe their request.
- Deploy counter measures: Do you really have to turn over confidential information? Not necessarily. There are two lines of defense that may be available. First, is this a request that is overbroad, vague, or “unduly burdensome”? If so, make that concrete: e.g., “this will require a search of 20,000 employment files – a task that would take 2 years even with 5 clericals assigned to do that full time.” Second, is the information truly confidential? If so, it will be necessary to spell it out, making sure to emphasize what might happen if it were not kept private: e.g., no employee would report safety violations in the future. Offering a creative alternative is also recommended; for example, if employee witness statements were requested, offer to provide a summary of them.
- Know the ETA: Do you really have to respond by the union’s stated deadline? Replying in two weeks is generally acceptable but one week is ideal. However, if information is difficult to obtain, tell the union and ask for more time in writing. But be sure to let them know that you are working on a response that you will send as soon as possible. That helps build the record of your good faith cooperation. And you might need that later. Worse, radio silence is fatal.
- Maintain the log: What do you need to do once you send a response? Record everything. That includes keeping copies of the actual information accompanying the response as well as all communications; if any of those are done live, then document them with follow-up emails (e.g., “As we discussed last night at the grievance meeting, …”). By the way, this is the 21st century: you can send everything by email and send the documents as pdf attachments.
Little engagements badly handled become disasters like Little Big Horn, Dien Bien Phu, or worse. Effectively handling information requests is, accordingly, critical. It is also smart as a way of moving forward by fostering a working relationship with the union. AT EASE!