The NLRB, in a 2-1 decision Iron Tiger Logistics NLRB 10-23-12.pdf, extended the duty to respond to union requests for information to cover requests for information that is found to be irrelevant to legitimate bargaining concerns. Prior cases had found employers who delayed in turning over relevant information to have violated the Act by delaying their responses. In Iron Tiger, the Board majority (Chairman Pearce and Member Block) found that even if the information requested turns out to be irrelevant, the employer has a duty to respond in a timely fashion on pain of violating its duty to bargain in good faith. The policy justification for the rule is that the employer can avoid a dispute and resulting Board charges if it states its position right away and allows the union to withdraw or modify its request. They observed that, had the employer done so in the case before them, “an unnecessary dispute could have been avoided.”
The dissenting Board member (Member Hayes) agreed that it would be preferable for an employer to respond quickly, but he could not find a duty under the Act to respond to requests for irrelevant information. He stated, “Ultimately, requested information is either legally relevant to a union’s representative duties, or it is not. If it is not, then the statutory duty to bargain in good faith is not implicated by the request or the employer’s failure to respond timely to the request.” Member Hayes also observed that the Board majority’s decision gives unions yet another tool “to hector employers with information requests for tactical purposes that obstruct, rather than further, good faith bargaining relationships.”
Employers who are confronted with demands for information that they believe seek irrelevant information should therefore say so without undue delay. The alternative is to risk an unfair labor practice finding. In connection with some other activity (such as a strike) a finding of a failure to bargain by refusing to give a timely response to an improper union information request could be enough to turn an economic strike into an unfair labor practice strike. The consequence for an employer who responds to the strike by hiring replacements could be significant.