A recent Decision and Order by the NLRB reinforces the importance of an employer to completely understand their statutory
obligation to provide requested information.
The Case:
Endo Painting Service, Inc. and International Union of
Painters and Allied Trades, Painters Local Union 1791. Case 20–CA–080565,
On March 8, 2012, the International Union of Painters and
Allied Trades, Painters Local Union 1791 (Union) filed a class grievance
alleging that Endo Painting Services Inc. (Endo) violated the parties’ collective-bargaining
agreement by refusing to pay employees for overtime. The Union alleged that Endo altered timesheets
to reflect fewer hours than employees actually worked, paying employees in
cash, and requiring some employees to use their personal vehicles to transport
workers and materials.
On April 24, 2012, the Union requested information it deemed
necessary to facilitate the processing of the grievance, including, among other
things, the names and rates of pay of employees working at particular jobsites,
along with copies of their timesheets; the names and amounts of cash paid to
employees who were paid in cash; the identification for all vehicles owned by Endo;
the names of Endo’s employees who were permitted to use a company credit card
to put gas into their personal vehicles; and a copy of Endo’s organizational
chart.
On July 20, 2012, other than informing the Union that it did
not maintain an organizational chart, Endo did not provide any of the requested
information.
An employer has a statutory obligation to provide to a union that
represents its employees, on request, information that is relevant and
necessary to the union’s performance of its duties as collective-bargaining
representative. See NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436
(1967); and NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152 (1956). This includes
information necessary to decide whether to file or process grievances on behalf
of unit employees. Acme Industrial, 385 U.S. at 435–439; see Disneyland Park,
350 NLRB 1256, 1257 (2007).
Equally important is the need for an employer to respond to an
information request in a timely manner. See Woodland Clinic, 331 NLRB
735, 736 (2000); Iron Tiger Logistics, Inc., 359 NLRB No. 13, slip op. at 2
(2012). This duty includes an obligation to timely disclose that requested
information does not exist. See Postal Service, 332 NLRB 635, 638–639
(2000). In determining whether an employer has unlawfully delayed responding to
an information request, the Board considers the totality of the pertinent
circumstances. “What is required is a reasonable good faith effort to respond
to the request as promptly as circumstances allow. In evaluating the promptness
of the response, the Board will consider the complexity and extent of information
sought, its availability and the difficulty in retrieving the information.”
West Penn Power Co., 339 NLRB 585, 587 (2003), enfd. in pertinent part 394 F.3d
233 (4th Cir. 2
On April 24, 2012 the
Union requested that Endo provide a copy of its organizational chart. Endo failed
to inform the Union that it did not maintain an organizational chart until July
20, 2012, nearly 3 months later. This was not a complex request, but Endo never
informed the Union that it was having trouble determining whether it maintained
an organizational chart, and it did not otherwise offer an explanation for its
delay in responding. In these circumstances, the Respondent’s delay was
unreasonable. See Postal Service, 359 NLRB No. 4, slip op. at 2–3 (2012)
(1-month delay in providing readily accessible documents was unreasonable);
Postal Service, 308 NLRB 547, 551 (1992) (unreasonable to delay 4 weeks in
providing information that was not shown to be complex or difficult to
retrieve).
In its exceptions, Endo asserts that it was not required
to provide the requested information because the March 8, 2012 grievance was a
class grievance, which, according to Endo, was not permitted under the parties’
agreement. Endo argued that the
grievance procedure is employee-specific, and that the clear intent of the exclusive
grievance procedure is to provide for the prompt resolution of specific employees’
immediate (within 7 working days) grievances.
Worth noting, the General Counsel and Union maintained that since there was
no language in the agreement that specifically precludes a class action type of
grievance, nor any contract language that specifically precludes the Union from
requesting grievance-related information from Endo, there has been no clear and
unmistakable waiver of the Union’s right to this information. For clarification, a class grievance, or a
class action grievance, is one that is filed on behalf of a “class” of affected
employees. The class may be as broad as the entire bargaining unit, or it may
be more narrow – e.g., a particular job classification, job title or shift or,
for example, “all women in the bargaining unit.” It is well established, however, that an employer
is required to provide relevant requested information regardless of the
potential merits of the grievance. Schrock Cabinet Co., 339 NLRB 182,
182 fn. 6 (2003). “This principle applies
even if the employer has a colorable procedural defense to the grievance.”
Des Moines Cold Storage, 358 NLRB No. 58, slip op. at 2 (2012) (citing Acme
Industrial, supra at 438).5 Thus, whether
or not the parties’ agreement permitted the filing of a class grievance, Endo acted
unlawfully by failing and refusing to provide the requested information.
The Analysis and Conclusions:
A
union’s right to file grievances, and an employer’s duty to furnish relevant
information to the union in furtherance of this right, is part of the
collective-bargaining process encompassed by Section 8(a)(5) of the Act. NLRB
v. Acme Industrial Co., 385 U.S. 432 (1967). NLRB v. Truitt Mfg. Co., 351 U.S.
149 (1956). The standard for determining whether the information is relevant to
a grievance is a “liberal, discovery-type standard.” Acme Industrial, supra at
437. Absent a union’s clear and unmistakable waiver of such a statutory right,
an employer violates Section 8(a)(5) of the Act if it refuses to provide the
requested information. Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708
(1983).
The
complaint alleges that Endo’s failure to furnish the requested information, and
its delay in responding to the Union’s information request, is violative of
Section 8(a)(1) and (5) of the Act.
The Remedy:
Having
found that the Respondent has violated and is violating Section 8(a)(5) and (1)
of the Act, I recommend that it be required to furnish the Union with the
information the Union has requested as specifically set out in paragraph 7 of
the complaint and notice of hearing in this matter, which information request
is hereby incorporated by reference in this decision.
The
NLRB Decision and Order may be found here…
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