Unions May Be Entitled to Non-Bargaining Unit Information Based on Unsupported Assertions of Relevance.

While employers may acknowledge that a union is entitled to information about bargaining unit members, the NLRB has made clear in a recent case that it believes unions are also entitled to non-bargaining unit information under a “liberal discovery-type standard” that broadly favors unions.

In CenturyTel of Montana, Inc., the employer refused to provide information requested by the union about the work performed by non-bargaining unit employees. The union did not provide any factual basis for its request until the unfair labor practice hearing regarding the request; nonetheless, the Administrative Law Judge found that the employer’s refusal to provide the requested information was unlawful.

As the NLRB noted, in affirming the ALJ’s decision, under the National Labor Relations Act, the duty to bargain includes the duty to provide relevant information, upon request, to the union to enable it to perform its duties as the employees’ bargaining representative. Where the requested information is about non-bargaining unit employees, it is not presumptively relevant and the relevance must be established. In order to establish relevance, the NLRB’s General Counsel must show that either (1) the union demonstrated such relevance, or (2) the relevance should have been apparent to the employer under the circumstances. Although the NLRB acknowledges that the union cannot rely on “generalized conclusory explanations, hypothetical theories, or mere suspicion,” the NLRB noted that the burden of establishing relevance is “not an exceptionally heavy one” and that it uses the afore-mentioned “liberal discovery-type standard” in evaluating the union’s showing. The NLRB also emphasized that the union is not required to disclose the facts supporting its claim of relevance at the time of its request, as long as it had a “reasonable belief” of relevance.

In the present case, the NLRB found that the relevance of the requested information should have been apparent to the employer at the time of the request, particularly given a company official’s admission that non-bargaining unit workers had been working in the area. The NLRB further found that, regardless of the foregoing, the union demonstrated the relevance of the request – not at the time, but at the unfair labor practice hearing regarding the refusal of the request.

This decision is troubling, in that the NLRB will apparently support a union’s request for non-bargaining unit information upon the purported “reasonable belief” of relevance, even without evidentiary support – and that such evidentiary support may be supplied in the context of the unfair labor practice hearing regarding the refusal.