The Rules Have Changed
In Collective Bargaining, Employers Have to Watch What They Say
By FREDERICK L. SULLIVAN, Esq.
The general council for the National Labor Relations Board (NLRB) recently issued guidelines to the agency’s regional offices on prosecuting unfair labor practice charges against employers that refuse to give information to unions during collective bargaining.
Generally, under existing labor law, a union is entitled to information about the bargaining unit employees’ terms and conditions of employment. But when the requested information involves matters outside the bargaining unit, the union bears the burden of showing the relevance of the requested information to the union’s bargaining responsibilities for its unit members.
Additionally, an employer’s statements or proposals during actual negotiations may make financial or other specific and limited information relevant to negotiations — and, thus, information that the union is entitled to request and to receive. For example, employer statements of an ‘inability to pay’ or ‘cannot afford’ will trigger an obligation to provide financial information if the union requests it.
The general counsel stated that there are no magic words required to create the employer’s obligation to provide financial information. Whenever the employer’s statements and action convey an inability to pay, the obligation is established. Thus, claims of economic hardship, business losses, prospect of layoffs, a matter of survival, or a comment such as, “acceptance of the offer would enable the company to retain your jobs and get back in the black,” in the context of the particular bargaining, have been found to amount to a claim of inability to pay that gives rise to an obligation to provide requested financial information.
The general counsel told NLRB regional directors to distinguish between general claims of inability to pay that give rise to financial information obligations and other, more limited employer claims that can be the subject of a union’s demand for verification. Besides inability statements, an employer may make a statement during bargaining that, according to the NLRB, will give rise to an obligation to provide the union with specific requested information.
For example, when an employer claimed a need to be more competitive, the NLRB ordered the employer to provide the union with competitor data, labor costs, and other information relevant to the claim. General counsel said a union is entitled to information tailored to what allows the union to evaluate specific employer assertions made during bargaining.
General counsel instructed the NLRB regions to analytically distinguish between inability to pay and an employer’s obligation to provide information in response to a specific claim by the employer made during negotiations, e.g., an inability to compete.
This year the NLRB ruled that a union is entitled to specific information regarding an employer’s job-bidding practices because the employer had contended in bargaining that its wages and benefits affected the employer’s ability to get and receive job bids. The NLRB ruled that a union is entitled to information that supports or disproves an employer’s representation.
The general counsel is advising the NLRB’s regional offices to pay close attention to an employer’s words used to support the employer’s bargaining position or used as reasons to reject a union’s proposal. The NLRB is entertaining demands that an employer verify whatever it communicates to the union as the reason for the employer’s position.
Employers need to be very deliberate in how they articulate reasons for their bargaining positions. Loose, unthinking statements can be seized upon by a union to demand all sorts of data and information from the employer. Before using references to costs, competition, etc., the employer should determine if it has data to support its claim and whether it will be willing to provide the information to the union. The current NLRB is moving employers toward a position of having to verify statements that in the past may have been considered part of the bargaining banter.
Now, much more than before, with the current NLRB administration, an employer has to develop a plan for each position that it takes on each proposal and counterproposal. Plus, an employer has to calculate how it will describe its positions and how it will respond, in detail, to union questions about the employer’s reasons so as to avoid giving rise to unintended information obligations. The general counsel’s emphasis on this topic and instructions to the NLRB regional offices constitute a move toward greater power in bargaining for union representatives.
Frederick Sullivan is a founding partner with the Springfield-based firm Sullivan, Hayes & Quinn, which represents employers in labor and employment-law matters; (413) 736-4538.
