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Are you required to provide confidential information to your union?
July 2017
Idaho Employment Law Letter

As an Idaho employer, the following is a scenario that you may have encountered in the past, or one that you certainly could encounter in the future.  An employee of your company has filed a grievance alleging that you have violated a specific term of the collective bargaining agreement ("CBA") between your company and the union.  You deny your employee’s allegations and refuse to settle the grievance.  

            Working through the grievance procedures set forth in the CBA, the union requests certain information and documentation that you consider to be highly confidential company information.  You have no intention of turning over this information, especially since your CBA doesn't have a provision addressing the exchange of information or documentation – during grievance procedures or during renegotiations of the CBA. You refuse to turn over the information.  Are you running afoul of the National Labor Relations Act (the "Act") by refusing to produce the information or documentation requested by the Union?  Could the union file an unfair labor practice charge with the National Labor Relations Board (the "NLRB")?  These are questions that you should be seriously considering under these circumstances. 

The Act's Statutory Duty to Furnish Information 

            Even though your CBA does not address the obligation to provide information during the grievance process, or during the renegotiations of your CBA, the Act does otherwise address the required exchange of information between the parties to your CBA.  Specifically, sections 8(a)(1) and (5) of the Act place a general, reciprocal statutory obligation on employers and unions to furnish certain information and documentation to each other in grievance procedures and in relation to collective bargaining. This obligation is independent of what is, or what is not, contained in a collective bargaining agreement.  The operative language of the Act is as follows: 

(a) Unfair Labor Practices by Employer.  It shall be an unfair labor practice for an employer- 

            (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;                 . . . . 

            (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.     . . . .

(d) Obligation to Bargain Collectively.  For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession[.] 

            In its interpretation of these provisions, the NLRB has recognized that "[a]n employer has the statutory obligation to provide, on request, relevant information that the union needs for the proper performance of its duties as [a] collective-bargaining representative."  In other words, "a union is entitled to relevant information during the term of a collective bargaining agreement to evaluate or process grievances and to take whatever other bona fide actions are necessary to administer the collective-bargaining agreement."  An employer's or union's obligation to produce relevant information under the Act is not automatic, however.  It is only triggered after a request or demand has been made for certain information held by the employer or union. 

            Not surprisingly, there are no bright-lined rules that can be used by employers to analyze what information or documentation is relevant and necessary; rather, the circumstances of each case must be examined to determine if the information/documentation sought by a union must be turned over.  Fortunately, there are general guidelines that have been established by the NLRB and courts that provide guidance.  For instance, requests made by a union for information and/or documentation are required to be made in good faith and cannot be intended to harass the employer.  It should be understood, though, that, if an employer claims that the union is acting in bad faith and refuses to produce the requested information, it will be the employer's burden of showing that the union's request has been made in bad faith.  This would be a factual inquiry that could be difficult and costly to establish.  

            A union's request for information/documentation must also be timely.  If the request is untimely, then an employer could make the argument that the union has waived its right to make the request, or the employer is otherwise justified in denying the request.  

            If a request for information/documentation by a union is ambiguous, an employer should not ignore or refuse to respond, but should request clarification or produce the information to the extent possible.  Requests made by a union must also be reasonable and not overly burdensome to the employer. 

So What's "Relevant" and "Necessary" Information?           

            The applicable relevancy standard is a liberal, discovery-type standard that is similar to that which is utilized in litigation.  As such, the threshold for relevancy is generally considered as low.  The burden is on the union to show that the information/documentation requested is relevant to the employer/employee relationship, and that burden is satisfied when a union demonstrates a reasonable belief, supported by objective evidence, that the requested information is relevant.           

            Certain information has been found to be presumptively relevant under the duty to furnish information imposed by the Act: "[w]here the union's request is for information pertaining to employees in the bargaining unit, that information is presumptively relevant and [an employer] must provide the information."  For example, information related to the wages, benefits, hours, working conditions, etc., of represented employees is presumptively relevant to collective bargaining. If an employer refuses to provide this information and takes the position that the information requested is not relevant, then it will be the employer's burden to show that presumptively relevant information is irrelevant. 

            An employer may also request a union's explanation as to the relevance of requested information, and a union's "generalized, conclusionary explanation is insufficient to trigger an obligation to supply information that is on its face not presumptively relevant."  Stated differently, a union's assertion that information is "necessary" is not sufficient to establish relevancy.  Furthermore, when a union's explanation is not precise (i.e., it is vague or speculative) the NLRB has found that an employer need not furnish the information requested.  

Other Potential Defenses Available to Employers 

            Employers may still raise traditional defenses such as attorney-client privilege and work-product privilege, which, if established by the employer, can protect the disclosure of information/documentation to a union.  An employer's notes taken during an investigation of employee's misconduct has been found to be protected from disclosure under the work-product privilege.  Generally speaking, the NLRB has found the work-product privilege to be applicable where (1) a "document was created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of that litigation"; and, (2) the "party representative 'must have had a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable.'"  The NLRB has also noted that the prospect of "litigation need not be actual or imminent; it need only be 'fairly foreseeable'"; and, that the privilege "extends to documents prepared in anticipation of foreseeable litigation, even if no specific claim is contemplated at the time the documents are prepared." 

Another significant defense that an employer may assert is that the particular information requested is confidential, which may prevent disclosure if the employer has a legitimate interest in protecting that information.   Sometimes an employer's legitimate interest can even outweigh arguably relevant information.  The NLRB has recognized that "in determining whether an employer must comply with a union's request for relevant but assertedly confidential information, the [NLRB] is required to balance a union's need for the information against any legitimate and substantial confidentiality interests."  Examples of information found to be confidential include (a) an employer's proprietary, trade secret information, (b) an individual's medical or psychological test results (i.e., personal information with a reasonable expectation of privacy), and (c) names of witnesses to drug transactions (i.e., information deemed confidential in order to prevent retaliation against and/or harassment of those witnesses). 

Legal commentators have also recognized that a "labor relations privilege" is currently developing, which privilege could be used by employers to argue that certain information is outside the scope of the Act's duty to furnish information.  Professor Mitchell H. Rubinstein has defined this privilege as "confidential communication exchanged between an individual union member and a union official concerning labor relations information, or a confidential communication exchanged between an individual management member and a management official concerning labor relations information." The privilege could serve to protect information/documentation that concerns "collective bargaining strategy, arbitration, union organizing plans, or information about an individual employee who is about to face discipline." Moreover, one of the reasons that a labor relations privilege is important is because a large amount of labor-management relations are regularly conducted by people who are not attorneys, and, in such circumstances, confidential communications that are taking place would not be afforded protection by the attorney-client privilege.                                                      

What Does This All Mean For You?           

            The above-identified material answers – at least partially – the two questions posed at the outset of this article.  The answer to the first question is it depends, because it will be a factual determination as to whether the information requested is relevant to the employer/employee relationship and necessary to the union's needs in performing its duties as a collective-bargaining representative.   The answer to the second question is a resounding yes.  If you refuse to produce information that a union considers to be relevant and necessary, then the union could, and likely would, file an unfair labor practice charge with the NLRB.  

            Because litigating before the NLRB can be an expensive and time consuming process, we recommend that employers get in front of these issues at the earliest possible opportunity.  If you receive a request from the union for information and documentation that you consider to be confidential or privileged, it would be prudent, and most likely would save you time and money in the long run, to get the advice of counsel early on.


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