When can a Union See an Employer’s Investigation File

When can a Union See an Employer’s Investigation File: Under the National Labor Relations Act, an employer must provide a union with information it requests within a reasonable time or tell the union why the employer will not provide the information. In United States Postal Service, 371 NLRB No. 7 (2021), the union requested the investigation file prior to the employer interviewing the employee accused of wrongdoing. The employer lawfully refused to provide the information while the investigation was ongoing but was required to provide the information at the conclusion of the investigation.

Oftentimes unions try to insert themselves in the investigation process and have a seat at the table when deciding who to interview, how the investigation should proceed, the level of discipline rendered, etc. Some employers think involving the union in these phases will avoid a grievance or unfair labor practice charge. That might be true. In my experience, though, it opens the door to unions having more reason to file grievances and ULPs; they are when the company doesn’t do what the union wants it to do during the investigation.

I usually tell my clients to follow the law: inform the union it will receive the required, necessary documents in a timely manner after the conclusion of the investigation.