Unions are legally entitled to more information than you might think that could help members win grievances and arbitrations.
The National Labor Relations Act requires employers to bargain collectively with the union. Supreme Court cases have further clarified the collective bargaining requirement, deciding that it is an unfair labor practice to refuse to provide information the union requests that is relevant to the bargaining process or to the employees’ terms or conditions of employment. And “unreasonable delay” in provide information is also a violation of the NLRA.
Unfortunately, many stewards and agents don't know about this right—and many union representatives won't use it unless members specifically ask them to.
This article outlines some of the basics of the right to information and how to use it. You will need more detailed information to effectively put this into practice. Get help from TDU to be sure you understand your rights under the grievance procedure in more detail.
When can you request information?
The union may request information to:
- monitor the employer's compliance with the contract.
- investigate whether a grievance exists.
- prepare for a grievance meeting.
- decide whether to drop or prioritize a grievance.
- prepare for an arbitration hearing.
Information requests must be made in good faith—not just to irritate the boss. But you can use information requests to strengthen almost any grievance. “It’s a good idea to submit detailed information requests each time you file a grievance,” advises attorney Robert Schwartz in The Legal Rights of Union Stewards. “Employers sometimes settle to avoid answering questions or providing sensitive documents.”
What can you request?
The scope of information the employer is required to provide is extremely broad. It includes all documents, data, and facts relevant to a grievance or contract interpretation issue. Information is considered relevant even if it only might be useful to the union or could lead to the identification of other useful information.
How specific does the request have to be?
Information requests can be quite general. For example, employers must respond to broad inquiries such as:
- “Please supply all documents or records which refer to or reflect the factors causing you to reject this grievance.”
- “Please supply all factual bases for the company’s decision.”
- “Please provide all documents, reports, and other evidence utilized in making the decision to discipline the employee.”
“We used an information request to save a member's job. When the company finally provided the information just before the arbitration hearing, it was obvious the company was guilty of disparate treatment. They knew they were going lose and they settled right there.
“Getting the information might be difficult if the company stonewalls you and your BA doesn't have your back, but info requests are valuable tools that members need to know how to use.”
Frank Halstead, Ralphs, Local 572, Los Angeles
Management may complain that such information requests are “fishing expeditions,” but this language has been upheld by the NLRB, which has ordered employers to comply.
These kinds of requests can be extremely useful in nailing down management's position so that they cannot shift their argument later in the grievance procedure or at arbitration. If an info request is comprehensive enough, the letter can also state the union will oppose the introduction of any non-disclosed information if the case goes to arbitration as a failure to comply with the original request.
Other information requests can be very specific. The union is entitled to a wide variety of specific documents. See examples in the box accompanying this article.
What if management refuses to provide the information?
Refusals to provide information or unreasonable delays are violations of Section 8(a)(5) of the National Labor Relations Act. The union can file an unfair labor practices charge with the NLRB if the company refuses to cooperate with an information request.
Who can request information from the employer?
Only shop stewards and union officers can request information from the company. Although shop stewards can request information, if the employer is intent on blocking the request or stalling, the backing of the business agent can be crucial to winning an NLRB charge. So whenever possible, it is best to get your business agent on board with an information request.
What can you do with a timid business agent?
Many business agents aggressively use information requests as a tactic to win grievances. If you are worried that your business agent might not be eager to request the information, ask them to request information from the company and explain specifically in writing what information you would like them to request.
What Information You Can Request and When to Request It
Documents. The union is entitled to examine a wide variety of records to investigate a grievance or to prepare for bargaining. Examples include: accident reports, air quality studies, attendance records, bargaining agreements for other units or facilities, bargaining notes, bonus records, contracts with customers, suppliers and contractors, correspondence, customer lists, disciplinary records, employer manuals, guidelines, policies, evaluations, interview notes, investigative reports, job descriptions, memos, schedules, time cards, videotapes, wage and salary records.
Data. Employers must provide the union with relevant lists, statistics, and other relevant data even if management must spend hours or longer putting it together. You can request data on prior disciplinary actions, promotional patterns, and overtime assignments. Employers are not excused from producing relevant data because of the size of the union's request, although the employer can bargain on reimbursement for its costs. Requests for data going back five years have been enforced by the NLRB.
Facts. Employers must answer pertinent factual inquiries. For a misconduct case, ask for the names and addresses of witnesses and descriptions of their testimony. For an arbitration hearing, ask for the names of persons the employer intends to call to the stand.
Disciplinary grievance. When grieving disciplinary action, always request a copy of the grievant's personnel file. If unequal punishment is an argument in the case, ask for the names of other employees who have committed the same offense and the penalties imposed.
Contract interpretation grievance. When a grievance concerns disputed contract language, request the employers bargaining notes from the session during which the clause was negotiated, the dates and contents of any union statements upon which the employer is relying, and descriptions of any incident which the employer says supports its position.
TDU can advise you on what information you should request and help draft information request letters.