One of the most useful parts of U.S. labor law is the obligation of employers to furnish records and other information needed to investigate and process union grievances. Cartoon: Nick Thorkelson.
Practically speaking, one of the most useful parts of U.S. labor law is the obligation of employers to furnish records and other information needed to investigate and process union grievances.
Although this duty is not explicit in the National Labor Relations Act, the U.S. Supreme Court has construed it from Section 8(d) of the Act, which requires employers and unions to “bargain collectively.”
Employers used to assert that their only duty was to furnish information during contract negotiations. But in 1967, the Supreme Court ruled that the obligation also applies during the term of the contract. This gives unions the right to request information needed to:
Monitor the workplace
Investigate an employee complaint
Get ready for a grievance meeting
Decide whether to move a grievance up the ladder
Prepare for an arbitration hearing
A private employer that refuses to provide relevant grievance information, or unreasonably delays doing so, commits an unfair labor practice by violating Section 8(a)(5) of the NLRA. Public sector agencies have similar duties under many state bargaining laws.
ENFORCE THE CONTRACT
It is a good practice to attach an information request to each grievance. Additional requests may be made based on the material initially provided or on employer contentions during the grievance.
Continuous requests add leverage for the union. Over time, managers come to understand that if they violate the contract, they will be hit not only by a grievance but also by enforceable demands for sizable amounts of data, often including sensitive records.
Whenever possible, demand correspondence between the employer and involved parties. In a grievance over subcontracting, for example, ask for letters, emails, and text messages between the employer and the subcontractor.
Following grievance meetings, review the employer’s arguments and demand that the employer back up its contentions. For example:
“During the first-step meeting on this grievance, supervisor James Martin said that the company had a past practice of denying educational leaves of more than one week. Please list each such employee request made over the past five years, the date, and the company’s response.”
WHAT YOU CAN ASK FOR
The obligation to provide information is surprisingly broad. It includes relevant documents, data, and facts. Information is relevant if it bears on issues between the parties or could lead to the identification of useful data.
If the requested information is held by a related party, the employer must conduct a diligent effort to obtain it, for example, requesting records from contractors, customers, or parent entities.
An employer may not impose a precondition on supplying information—such as the union’s agreement not to disclose the materials to outsiders—unless the information is extremely sensitive. One example is the terms of a subcontract. Another is a diagnosis of a serious health condition.
Documents. The union is entitled to examine a variety of records to fulfill its responsibilities, including:
Equal Employment Opportunity (EEO) reports
health and safety audits
internal reports and studies
pension contribution records
photographs or videos of alleged misconduct
security guard reports
Data. Employers must provide lists and other requested data. In a discipline case, ask for the names of all other employees charged with the same offense over past years and a description of any penalties imposed.
Facts. Employers must answer pertinent factual inquiries. Demand the names and addresses of witnesses, descriptions of their testimony, and copies of their statements.
General inquiries. Employers must comply with general inquiries such as:
Supply all documents or records which refer to or reflect the factors causing you to reject this grievance.
Furnish all factual bases for the company’s decision.
Provide all documents, reports, and other evidence reviewed in making the decision.
Disciplinary grievance. Always review the grievant’s personnel file. To prove disparate treatment, ask for the reasons why other employees were given lesser penalties.
Contract interpretation grievance. Request the employer’s notes from the relevant bargaining sessions, any union statements the employer is relying on, and a description of any incidents that support the employer’s position.
Promotion grievance. Ask for the personnel file of the successful bidder, the file of the grievant, interview notes, and reports rating or evaluating the applicants.
Health and safety grievance. If you are grieving an unsafe substance, request the material safety data sheet (MSDS) supplied by the maker of the substance, copies of any OSHA citations, studies concerning the substance, and data listing employee illnesses or laboratory findings.
If necessary, demand permission for an outside specialist, such as a union industrial hygienist, to inspect the workplace.
Employers make numerous excuses to avoid supplying information. Here are some that the NLRB routinely rejects:
You can get the information from your members.
The request is too large.
The grievance has no merit.
The information has been posted.
The grievance is not arbitrable.
The grievance is time-barred.
Records that are properly classified as confidential can initially be withheld by the employer. These include records that are highly personal to employees or highly sensitive to the employer.
Medical records, psychological data, and aptitude test scores may meet the highly personal standard. Trade secrets, profits and losses, and product research may be highly sensitive.
However, employee addresses, telephone numbers, wage data, personnel files, and discipline records are not confidential. Nor are most internal reports or studies, even when critical of the employer.
To invoke confidentiality, an employer must have a publicized and consistently enforced policy barring disclosure of the information in question. Moreover, the interests of the employer in preventing disclosure must outweigh the union’s need to obtain the requested information.
An employer that asserts confidentiality must do so at the time it initially refuses to supply the information. Moreover, the employer must offer an arrangement that satisfies both the employer’s confidentiality concerns and the union’s need for the requested information. A common example is “a confidentiality agreement” under which the union promises not to reveal the information to outsiders.
A union can short-circuit litigation over confidentiality by making a proactive offer to sign a reasonable agreement as soon as the employer asserts its claim. Unless the union has a history of welching on its promises, the employer must accept the arrangement.
Employers must respond promptly to information requests. The acceptable time depends on the volume and complexity of the information requested. Simple items, such as personnel files and attendance records, should be produced in one or two weeks. Threaten to file a ULP charge if a reasonable period expires.
QUESTIONS AND ANSWERS
Keeping tabs on temp workers
Q. What data can we demand about temporary employees hired to perform bargaining unit work?
A. Names, addresses, date of hire, wage rates, and reasons for hire.
Information about non-bargaining unit employees
Q. We know that a supervisor violated the same rule as a bargaining unit member (no smoking on the premises). Can we demand a copy of the supervisor’s personnel file to find out if any action was taken against him?
A. Yes. A union is entitled to the records of non-bargaining unit employees that may support a grievance. When a rule applies to all persons in a workplace, arbitrators expect employers to apply substantially similar punishments for violations.
Q. Can we insist that the employer send us prompt notice whenever it disciplines a member?
A. Yes. An employer must comply with ongoing information requests that are relevant to union responsibilities. Unions may also request prompt notice of leave requests, workplace accidents, and other recurring matters.
Employer demands union grievance file
Q. After we requested the employer’s investigatory file, the company demanded to see the union’s grievance file. Do we have to comply?
A. No. Although a union has a general duty to supply necessary information to the employer, a rule called the “work-product privilege” allows a party to withhold documents prepared in anticipation of litigation, including grievance and arbitration hearings. The union’s file usually qualifies under this rule. (The employer’s file usually does not because it was prepared to determine whether to impose discipline, an ordinary business decision.)
Witness interviews and statements
Q. The employer claims it can withhold witness statements and interview notes on the basis of a National Labor Relations Board decision called Anheuser-Busch. Correct?
A. No. The NLRB reversed Anheuser-Busch in 2015.
Q. Our employer, a hospital, refuses to give us records when employees are charged with patient abuse. It claims a federal law called HIPAA requires it to have the patient’s permission. True?
A. No. HIPAA does not apply to disclosures “required by law.” Union requests for grievance information are usually authorized by the NLRA or a state bargaining law.
Management rights decision
Q. Our contract gives the employer the “exclusive right to assign and schedule work.” Does this preclude us from demanding the reasons when the company changes schedules?
A. No. Although the contract may give the employer the right to make scheduling decisions without notice to the union or bargaining, the union can always grieve a change that affects employees on the ground that it is “unreasonable.” Consequently, it may demand that the employer give a rational reason for its actions.