Investigating Grievances Through Information Requests
One of the major advantages of a collective bargaining agreement is the ability of the union to arbitrate grievances. The National Labor Relations Act provides the union an inexpensive and effective way to investigate many of these claims.
More than 60 years ago, the Supreme Court held that if a claim is raised by a party to a collective bargaining agreement, either in negotiations or the grievance procedure, that claim must be substantiated to the other party upon request. This duty to provide information is a part of the duty to bargain in good faith.
First, of course, a request for information must be made affirmatively. Information requests can be oral or in writing, although written requests are normal and prudent. A request can lapse if it’s ignored, so diligent follow-up is also required.
There is a broad standard for relevance. Generally, any information that relates to a proposal on a mandatory subject of bargaining, necessary to process a grievance, or pertaining to employees in the bargaining unit will be deemed presumptively relevant, which means the union need not justify the request initially, but needs only to make it. Some matters held to be relevant include wage and related information, seniority lists, insurance policies, rates of pay, information relating to holidays and other benefits given to employees. Also included are employee names, addresses, telephone numbers, wages and hours worked, and any other conditions of work of unit employees.
On the other hand, information about non-unit employees or supervisors is generally not relevant (unless for example they are performing bargaining unit work and the grievance is about that subject).
An exception to this rule is that the employer is not obligated to provide the union statements it has taken from witnesses. The employer still has to provide witness names and the substance of their testimony. The employer is also obligated to provide evidence that is not a witness statement but records what happened, such as a videotape, a written customer complaint and so on.
Confidential information and private employee information are subject to the duty to bargain. The employer cannot simply refuse to present the information, but must negotiate over how to safeguard confidentiality or privacy.
Likewise, while most information is provided for free, the employer must negotiate over the cost of providing large and burdensome requests (perhaps for hundreds of pages of information). It is generally expected that this information must be provided at cost.
The NLRB does not defer processing of charges over information requests in the grievance procedure at this writing, which ensures that there will be timely processing of a charge over refusal to provide information while the information is still relevant.