Employers have an obligation to furnish information to union representatives during contract negotiations. Without such information, the union is unable to perform its duties as the bargaining agent. However, the obligation to provide the union with information does not arise until the union makes a request that the information be furnished. While the request must be made in good faith, good faith is a low burden to meet. A demand made in bad faith or that is irrelevant may be refused.
The duty to furnish relevant information is a statutory obligation that exists independent of any agreement between the parties. Wages and related data for members of a bargaining unit have been held so important that they are presumptively relevant. Upon request, an employer must also provide information regarding contract administration, grievance processing, and negotiations.
Employers act in bad faith when refusing to provide information to substantiate a claim of inability to pay increased wages. On the other hand, a union’s request that employers open their books and justify demands for wage concessions is insufficient notice to employers that the union sought to corroborate its belief that those employees actually received above market wages. Semantics often plays a large role in whether information must be furnished to a union. Unsuspecting employers can easily be caught providing information that they otherwise would not have to provide but for accidentally using the wrong words during negotiations.
An employer’s interest in confidentiality is still important though when providing information to a union. The NLRB has found that an employer did not violate the National Labor Relations Act by refusing, on the basis of confidentiality, to furnish the union with a copy of notes from interviews the employer had conducted when investigating an employee’s complaint about the threatening conduct of a supervisor. In that specific situation, the individuals who were interviewed participated voluntarily and the manager told employees their responses would be kept confidential. The Board explained its reasoning by citing the important purposes of encouraging employee participating in investigations of workplace misconduct and protecting those participants from retaliation. The NLRB’s recent attack on workplace confidentiality may not yield the same result now that it did then.
Overall, unions are savvy in making requests for information. They know what they are allowed to ask for. They can also tell whether the employer’s bargaining representative knows the law about what they can ask for and will ask for information and documents they are not entitled to receive if they sense the employer’s representative does not know the law. Make sure your bargaining representative knows the law.
Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can email Matt at Austin@LaborEmploymentOSHA.com or call him at 614.285.5342.