A newsletter from JALMC

What Can the Union Demand?

Access to Work Areas - Unions can demand access to the employer's work areas to gain the information necessary for them to carry out their collective bargaining responsibilities. This includes observation of plant equipment, employee operations and working conditions, health and safety concerns, work rules, skills, or any other matters necessary to develop informed and reasonable representation strategies.

Information for Bargaining - The duty to bargain and provide relevant information arises as soon as the union is elected as the bargaining representative and continues as long as the union remains the representative, regardless of whether a contract is in place. Information such as names and addresses of employees, dates of hire, terms and conditions of employment, benefit plans, employee manuals, disciplinary policies, health and safety procedures, etc., is presumptively relevant. Almost everything else is arguably relevant.

Of special concern is financial information. If an employer says, "We cannot pay" as opposed to "We will not pay," the union can demand documentation of that claim by reviewing the employer's financial records. This could include an employer's statement that it must remain competitive to survive, even when the employer claims it is not pleading an inability to pay.

Information for Grievance Handling - The employer's obligation to provide grievance information is extremely broad. It includes the disclosure of a broad range of documents; factual information and data; materials that could be useful or lead to other information that could be useful; and records of the grievant, other bargaining units employees and non-bargaining unit employees, like supervisors and management. All that the National Labor Relations Board requires is that the information be necessary and relevant for the monitoring of compliance with the contract, the investigation of whether a grievance exists, preparation for a grievance meeting, determination of whether to proceed with the grievance, and preparation for the arbitration hearing.

How Must the Boss Respond?
The employer must provide the requested information without undue delay or make a reasonable good faith effort to respond to the request as promptly as circumstances allow. The failure to provide information usually makes any impasse invalid. However, the employer does not have to provide the information in the precise form requested by the union. If the cost of the copying is not substantial, the employer must bear the cost. If the cost is substantial, the employer must bargain over the amount to be paid by the union. If the parties cannot come to agreement, the union may request and is entitled to direct access to the records to do the copying itself.

When Employers Make Confidentiality Claims
If the information request is relevant, but the employer asserts confidentiality concerns, the Board is required to balance a union's need for the information against any "legitimate and substantial" confidentiality interests established by the employer.

The appropriate accommodation necessary depends on the particular circumstances of each case. The employer who claims confidentiality has the burden of proof. Legitimate and substantial confidentiality and privacy claims will be upheld, but blanket claims of confidentiality will not. When the employer refuses to supply information on confidentiality grounds, it must bargain toward an accommodation between the union's information needs and its claim of confidentiality. The union should not agree to a broad and general confidentiality agreement.

The union should include a statement in each request that if the employer considers information to be confidential, a written description of each item of information, including its title, author, recipient and content, along with the reasons for the claim of confidentiality, should be provided. The union can also propose that the employer delete those portions or references of a document that it claims to be proprietary or confidential, along with the reason for the deletion, and then submit the modified document.

The Bottom Line
The effective use of data demands in the war between labor and management puts the boss on the defensive and the union in control. Over and over again, we have seen employers back off a proposal when asked to provide the information, in writing, regarding that proposal. The bosses have a hard time denying their bad faith bargaining when it's in writing.

From:OCAW Reporter, P.O. Box 281200, Lakewood, CO 80228-8200