REQUEST FOR INFORMATION
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Grievance Forms | ||
| NALC | ||
| Mail Handlers (coming soon) | ||
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Rural Carriers (coming soon) | ||
| APWU | ||
| Request for Information pdf | Step 1 Grievance Outline Worksheet pdf | |
| Step 2 Grievance Appeal Form pdf | Step 3 Grievance Appeal Form pdf | |
| Appeal to Arbitration From Step 2 Form pdf | ||
Introduction
In the pursuit of their duties, union stewards often need information in possession of Management. All such information pertaining to the legitimate needs of the union for bargaining, grievance handling, etc., must be made available to the union. Stewards need to know what types of information are available and how to ask for it. This page is intended to assist stewards (and grievant) to get more familiar with this important topic.
This is an excerpt from the book “The Legal Rights of Union Stewards”,
by Robert M. Schwartz, published by Work Rights Press.
The Legal Rights of Union Stewards can be ordered by clicking on the link
More Books by Robert M. Schwartz, Union labor lawyer
Union Right to Information
One of the most useful tools in the NLRA is the right to obtain information from employers. Although this right is not explicit in the text of the NLRA, the Supreme Court has construed it from the requirement in Section 8(d) that employers and unions bargain collectively. Without access to information, unions cannot fulfill their responsibilities to negotiate, monitor, and enforce contracts. Refusals to provide information, or unreasonable delays, violate Section 8(a)(5) of the NLRA.
WHEN TO REQUEST INFORMATION
Employers sometimes assert that union rights are restricted to information needed for contract negotiations. This is not true. In NLRB v. Acme Industrial Co. (1967), the Supreme Court ruled that employers must furnish unions with information relevant to grievances.
As a steward, you may request information to:
- monitor compliance with the contract,
- investigate whether a grievance exists,
- prepare for a grievance meeting,
- decide whether to drop a grievance or move it up the ladder, or
- prepare for an arbitration hearing.
You can also request information when bargaining on midterm changes. (See Chapter 6.)
The NLRB does not defer charges that allege a refusal to supply information.
WHAT CAN YOU REQUEST?
The obligation of an employer to provide information is extremely broad. It includes relevant documents, data, and facts. Information is considered relevant if it might be useful to the union or could lead to the identification of useful information.
If management does not have the information in its possession, it must conduct a diligent effort to obtain it, including making requests of third parties with whom it has a relationship, such as contractors, customers, and parent corporations.
Preconditions, such as an insistence that the union not disclose information to outsiders, may not be imposed unless the information meets a strict test of confidentiality.
Information requests must be made in good faith. The request must relate to contract administration or bargaining, and the union must explain its reasons if asked by the employer. The union cannot use an information request for harassment purposes or to conduct a fishing expedition into the employer’s records.
Information requests do more than obtain valuable data: they also discourage employers from violating the contract. Management may even settle a grievance to avoid supplying data or documents to the union. Information requests should be submitted for almost all grievances..
Documents. You are entitled to examine a wide variety of records to investigate a grievance or to prepare for bargaining. Here are some of the documents you can request:
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Data. Employers must provide the union with 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 and overtime assignments. Employers are not excused from producing relevant data because of the size of the union’s request. 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 a subcontracting grievance, ask for a description of the work, the amount of the contract, and the reasons for the contract. For an arbitration hearing, ask for the names of persons that the employer intends to call to the stand.
General inquiries. Employers must respond to general 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.
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. In some circumstances, you can request information about supervisors and other non-unit employees.
Contract interpretation grievance. When a grievance concerns disputed contract language, the dates and contents of any information which the employer is relying on, and descriptions of any incident which the employer contends support its position.
Past practice grievance. If you are trying to enforce a past practice, and management denies that the practice has been consistent, ask for the dates and circumstances of all occasions on which management claims a departure from the practice.
Health and safety grievance. If you are grieving an unsafe substance, request copies of any OSHA citations, documents from the employer concerning the substance.
Discretionary leave grievance. If you are grieving the denial of a leave request, ask for records of requests by other employees over the past several years and the employer’s reasons for granting or not granting each request.
Information about non-unit employees. You may request information about employees outside of the bargaining unit, including supervisors, when that information is relevant to a grievance. For example, if a unit employee is accused of violating a rule which equally applies to non-unit employees, you can request the names of non-unit employees, including supervisors, who have violated the rule, a description of each infraction, and a description of any discipline imposed.
If you know of a particular non-unit employee or supervisor who has violated a rule that applies to unit and non-unit employees, you are entitled to information from the non-unit employee’s personnel file as well as any other records relevant to proving unequal discipline. Employer defenses based on the privacy of supervisors’ records have been rejected by the Board in these circumstances.
Unions can prepare master information request forms and distribute them to stewards.
EMPLOYER RESPONSES
Employers often make excuses to avoid supplying relevant information. Here are some that the NLRB has rejected:
- You can get the information from your members.
- The request is too large.
- The grievance has no merit.
- The information has been posted.
- The grievance is not arbitrable.
- You can subpoena the information to the arbitration.
- Past grievances were resolved without this information.
- The materials are privileged.
- We will only give the information if you agree to give us similar information from union records.
- No documents exist under that titleholder.
- We will provide the information to the union if the grievance goes to a higher step.
- The grievance is time-barred.
Confidentiality. The major exception to the duty to provide information is confidentiality. Confidentiality refers to information which is either highly personal or highly sensitive. Individually identified medical records, psychological data, and aptitude test scores usually meet the highly personal standard. Records revealing the employer’s trade secrets, profits and losses, and product research often meet the highly sensitive standard. Employee addresses, telephone numbers, wage data, personnel files, and disciplinary records are not confidential. Nor are internal reports or studies, even if self-critical of the employer.
To invoke the confidentiality defense, an employer must have a publicized and consistently enforced policy barring disclosure of the information in question. Moreover, the interests of the employer in preventing disclosure must outweigh the union’s need to obtain the requested information.
An employer that asserts confidentiality must do so at the time it initially refuses to supply the information. The employer must also offer to make an arrangement with the union that accommodates both the employer’s confidentiality concerns and the union’s need for the requested information.
Measures can usually be found to protect both sides. For example, if medical confidentiality is asserted, the employer can delete or black out the medical references. .
DEADLINES
Under NLRB rules, an employer must respond promptly to a union information request. The acceptable time period, however, depends on the information requested. Unreasonable delay is just as serious an NLRA violation as outright refusal.
QUESTIONS AND ANSWERS
NAME OF POTENTIAL GRIEVANT
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Q. |
Our LMOU requires that overtime be distributed equally. To check out an employee’s complaint, we asked for records of overtime assignments in his department. Payroll is refusing to comply unless we specify the name of the employee who complained. Do we have to? |
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A. |
No. According to the Board, a union is under no obligation to inform the employer of the specific nature of the grievance prior to obtaining the requested information. |
PERSONNEL FILES
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Q. |
Two employees were in a fight, but only one was suspended. Management is refusing to give us the file of the worker who was not suspended unless we obtain his written consent. Are we entitled to these records? |
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A. |
Yes. The personnel file of a bargaining unit employee must be turned over to the union with or without authorization from the employee and even over his objection. |
ATTENDANCE RECORDS
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Q. |
When a worker was disciplined for absenteeism, I asked for the attendance records for all employees in her department. Management said the could not release the records because they contain confidential medical information. What are the union’s rights? |
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A. |
SEE
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FORM OF INFORMATION
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SECOND REQUEST
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Q. |
We made an information request and received several documents. Can we make a second request based on what we learned from the first? |
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A. |
Yes. |
TOO MUCH REQUESTED?
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Q. |
For a safety grievance, we asked for data about machine malfunctions over the past three years. Management is refusing on the grounds that the effort needed to assemble the information would be excessive. Is this a valid excuse? |
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A. |
No. The NLRB does not recognize limits to an employer’s obligation to provide relevant information. Even a burdensome request must be complied with, to the extent that it encompasses information to which the union is entitled. In one case involving allegations of discrimination in a large bargaining unit, an employer was ordered to supply data concerning hiring, seniority, job classifications, and promotions despite a claim that the request would entail almost 20,000 hours of clerical work. |
ARBITRATION PROCEEDINGS
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Q. |
Arbitration is scheduled for next month. Is it too late to request information? |
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A. |
No. The duty to furnish information applies to preparations for arbitration. |
SUPERVISOR
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Q. |
A worker was suspended for sexually harassing a female employee. In order to show unequal discipline, can we ask for the personnel file of a supervisor who did the same thing last year? |
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A. |
Yes. A union can request the personnel or disciplinary file of a supervisor if (1) the supervisor is subject to the same rule or standard of conduct as bargaining unit members, and (2) the union has a factual basis (such as a witness) for its allegation of similar misconduct by the supervisor. |
SECURITY INVESTIGATION
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Q. |
A driver was fired for causing an accident. Management has compiled a detailed security report on the matter. Can we request it? |
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A. |
Yes. Investigative, security, and supervisory reports concerning an incident encompassed in a grievance must be disclosed to the union. |
WITNESS NAME
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Q. |
An employee was fired for stealing. Management says it has a witness. Is the union entitled to his name? |
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A. |
Yes. Except in two instances, an employer must tell the union the name and address of a witness, whether the witness is a fellow employee, a supervisor, or a customer. The exceptions are (1) if there is a history of union intimidation of witnesses;173 or (2) if the employer has promised the witness anonymity. NOTE: An employer’s claim of confidentiality based on a promise of anonymity to a witness carries little weight unless the employer pledges not to call the witness to testify at a grievance or arbitration hearing. |
WITNESS STATEMENT
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HANDWRITING ANALYSIS
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Q. |
An employee was fired for falsifying a doctor’s signature on a sickness and accident application. The employer claims to have a professional handwriting analysis. When we asked for it, the employer refused, saying we could hire our own expert. Do we have a right to see the company’s analysis? |
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A. |
Yes. A professional handwriting analysis is not a confidential document. It must be turned over to the union. |
U.S. PRIVACY ACT
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Q. |
When we requested personnel files for a grievance, our manager said she could not give them to the union because of the U.S. Privacy Act. Is she right? |
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A. |
No. The U.S. Privacy Act does not restrict union access to
grievance-related information.
ASM |
Abbreviations In the Text
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ASM |
Administrative Support Manual |
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NLRB |
National Labor Relations Board |
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NLRA |
National Labor Relations Act |
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OSHA |
Occupational Safety and Health Administration |
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ULP |
Unfair Labor Practice |
A GLOSSARY OF LABOR TERMS
Terms
Bargaining Unit: A group of employees in a given workplace who have a sufficient similarity of interest to constitute a unit for the purpose of bargaining collectively with their employer. A bargaining unit is usually defined by the National Labor Relations Board, or similar federal, state or local agency. top
Certification: Official recognition by a labor relations board that an employee organization is the exclusive representative for all the employees in an appropriate bargaining unit for the purpose of collective bargaining. top
Contract, or Collective Bargaining Agreement: A formal written agreement over wages, hours and conditions of employment entered into by an employer and the union representing the employees in the bargaining unit. top
Employee Assistance Program: A confidential information, support and referral service designed to help employees cope with personal problems which have a negative impact on their lives and, subsequently, on their work productivity. Deteriorating job performance can lead to an employer taking disciplinary action. Such programs often provide assistance in such situations as emotional stress, marital and family problems, financial and legal difficulties, and drug or alcohol abuse. top
Free Rider: An employee who chooses not to join the union that has negotiated the contract over his/her wages and working conditions, and who reaps the benefits from that contract.
Fringe Benefits: Vacations, holidays, insurance, medical benefits, pensions and other economic benefits that are provided to employees under the union contract; these are in addition to direct wages. top
Labor Relations Board: Quasi-judicial agency set up under national or state labor relations acts. Its duties are: defining appropriate bargaining units; holding elections to determine if workers want union representation; certifying unions to represent employees; and applying legal provisions prohibiting certain employer or union unfair labor practices. top
Picketing: The carrying of signs or the passing out of literature protesting working conditions or actions taken by the employer. Picketing occurs during a strike, or in the form of an informational picket. In this tactic, designed to put pressure on the employer, union members inform the public and other workers about the conditions they feel are unfair. top
Representation Election: A vote conducted by an appropriate labor board or agency to determine whether a majority of the workers in a previously established bargaining unit want to be represented by a given union. top
Scab: A person who continues to work, or who accepts employment, while the workers are on strike. By filling the jobs of striking workers, and keeping the employer operational, scabs may weaken or help break the strike. top
Seniority: Length of service with an employer. Based on their seniority, preference can be accorded to employees in such areas as promotion, transfer, shift assignment, scheduling, vacation accrual, layoff, recall, etc. top
Sexual Harassment: Any unwarranted and repeated sexual comments, looks, suggestions or physical contact that create an uncomfortable working environment for an employee. Sexual harassment is against the law (see pages 40-41).top
Unfair Labor Practice: An employer or union practice forbidden by the National Labor Relations Act, the Civil Service Reform Act (for federal workers), or state and local laws, subject to court appeal. It often involves the employer’s efforts to avoid bargaining a contract in good faith. Other examples of possible ULPs are when management fails to provide information the union has requested and needs to process a grievance, or when management repeatedly fails to implement grievance settlements or arbitration awards. top
(disclaimer) Always seek the advice of your local, regional or national union representatives pertaining to request for information.