By Joshua M. Henderson.

Here’s a new one: A union sends a written request for irrelevant information to an employer, and the employer blows off the union’s request and undoubtedly sends the request to the “circular file,” or trash can.  The union files an unfair labor practice charge for the employer’s failure to respond to its request for irrelevant information.  Employer wins, right?

Wrong.  In IronTiger Logistics Inc., 359 NLRB No. 13 (October 23, 2012), the Board held in a 2-1 decision that the employer was obligated to respond timely to the union “in some manner” (the emphasis is in the Board’s own opinion) even to an information request that was later found by a judge to be irrelevant.  The union did not challenge the judge’s finding that the information sought was irrelevant.  Indeed, the union’s representative conceded the employer’s argument that he was “`asking for a lot of bullshit.’”  On this point, the judge’s opinion below contains this gem of a passage:  “[The union representative’s] agreement that the information sought was ‘bullshit,” absent an explanation regarding why the information was needed, confirms my finding that the information requested was irrelevant.”        

The union’s request concerned supplementary information involving the unit of drivers represented by the union.  The employer previously provided a 29-page response to a prior request for information.  The employer ultimately responded to the union’s supplemental request for information 4½ months after the request was made, and 2½ months after the union filed its charge.  

The majority held the employer’s actions to be unlawful.  In its opinion, the key was the presumptive relevance of the information sought.  Even though a judge ultimately held that the information sought was irrelevant, the information was presumptively relevant because it concerned the unit of employees represented by the union.  Under these circumstances, according to the majority, the NLRA “requires a timely response even when an employer may have a justification for not actually providing requested information.”  This was consistent with the employer’s obligation to act in good faith.

In dissent, Member Hayes observed that the majority was making new law under the guise of following earlier precedent: “Until today, the Board has never held that there is an independent statutory duty to respond to a request for presumptively relevant information, even if that presumption was rebutted in litigation.”  Although the employer had not established to the judge’s satisfaction that the union’s information request constituted harassment or was made in bad faith, the majority’s decision (according to the dissent) “gives even greater latitude for unions to hector employers with information requests for tactical purposes that obstruct, rather than further, good-faith bargaining relationships.” 

The majority offers no bright-line rule in this decision for what is a sufficiently prompt response to satisfy an employer’s obligation under the Act.  Time will tell.