The Union’s Right to Information or How to file a Successful Request for Information

In this article we will answer the following questions and a whole lot more:

• ·         What is a request for information?
• ·         Under what conditions can I request information?
• ·         What can I do if the company refuses to give me the information I requested?

The request for information comes from the obligation and duty to bargain and applies to contract negotiations as well as the grievance procedures that follow. 

Congress enacted the National Labor Relations Act ("NLRA") in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.

An employer who refuses to provide information or unreasonably delays the provision of information violates Section 8(a)(5) of the Act.

Information can be requested by a Union who is certified to represent company’s employees for the following reasons:

• ·         To prepare for collective bargaining negotiations
• ·         To monitor the Collective Bargaining Agreement (CBA)
• ·         To investigate a grievance

In order for a request to be valid it must somehow relate to one of the above issues. 

For example, a Union is preparing for negotiations and requests a copy of all workplace rules and regulations, a list of all positions to include their duties, responsibilities and where their position is located at. 

Another example would be if a Union was investigating the discharge of a member.  The Union could request a copy of all information used by the employer to decide to terminate the member, including but not limited to, all evidence, statements, emails, photographs, video recordings, audio recordings, photographs and any notes. 

Even though a grievance is not necessary to request information it is recommended that the Union has some form of probable cause to justify a request.  It does not hurt the Union’s case to be able to articulate the reasons behind their request. 

What types of information can the Union request?

It would actually be easier to list all of the information the Union cannot require from the employer.  Here are a few examples of information that is not allowed:

• ·         Information covered by the Health Insurance Portability and Accountability Act (HIPPA)
• ·         Trade secrets covered as propriety information
• ·         Information which the employer has consistently enforced a policy barring disclosure so long as the employer provides an alternative or substitute form of disclosure

In order for your request to be effective it must contain the following items:

• ·         It must clearly identify the information being requested.
• ·         If the request is in connection to another matter such as a grievance it must be clearly referenced.

The following items are highly recommended:

• ·         Clearly state where the information is to be delivered
• ·         Clearly state how the information is to be delivered
• ·         Clearly state when the information is expected to be delivered
• ·         Clearly state that if any part of the request is denied the employer must state this fact in its response

Now let’s talk about delivery.  In order for a request to be effective you must have proof of delivery.  This can be accomplished in several ways.  They are:

• ·         Via certified mail, return receipt requested.
• ·         By hand delivery, with a statement from the person performing the delivery.
• ·         By fax or by email along with a confirmation copy, a reply or a phone call verifying that it was actually delivered.

What can you do if the company refuses or fails to provide the information requested?

The agency that enforces the National Labor Relations Act is the National Labor Relations Board (NLRB). 

The NLRB is an independent agency of the United States government charged with investigating and remedying unfair labor practices.  As previously mentioned, an employer who refuses to provide information or unreasonably delays the provision of information violates Section 8(a)(5) of the Act.

This next part will depend how your Union is set up.  Many organizations require Locals to go through their parent organization in order to file NLRB charges.  You should check with your National or International before moving forward.

For those Locals or Independent Unions who are left to fend for themselves you can file the charges in two ways.  You can fill out the forms yourself and either walk them into the NLRB or fax them in, or you can call the NLRB and the Information Officer (who normally answers the phone) will take the necessary information from you. 

After a few days an Agent will contact you and tell you what you will need to do.  Be prepared to provide an affidavit under oath as well as provide all relevant information or witnesses to support your case.

Generally speaking, NLRB charges filed over refusals to provide information are not subject to the NLRB’s policy of deferral.

This means that the NLRB will fully investigate the issue and if the violation is found to be valid, the NLRB can order the employer to provide the information requested. 

For more information you can visit the NLRB’s website at www.nlrb.gov.

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