Responding to Requests for
Irrelevant Information. First, bad news. In late October, the NLRB ruled that an
employer violated the NLRA when it took four months to tell a union in writing that
its request for information about a non-union entity was irrelevant. Iron Tiger Logistics, 359 NLRB No. 13. The ALJ and the union ultimately agreed with
the employer that the requested information was irrelevant to the union’s
duties as bargaining representative and the employer did not need to produce
the information. The union did not
appeal that finding. Nonetheless, the
ALJ found that waiting four months – until after the ULP charge had been filed
-- to put in writing that the union’s
request was for irrelevant information violated the employer’s duty to bargain
in good faith with the union. As
explained by the ALJ:
[A]n employer must respond to a
union’s request for relevant information within a reasonable time, either by complying
with it or by stating its reason for noncompliance within a reasonable period
of time. Failure to make either response in a reasonable time is, by itself, a violation
of Section 8(a)(5) and (1) of the Act. Some kind of response or reaction is
mandatory. Columbia University, 298 NLRB 941, 945 (1990), citing Ellsworth
Sheet Metal, 232 NLRB 109 (1977).
The
NLRB agreed: “an employer must timely respond to a union request seeking
relevant information even when the employer believes it has grounds for not
providing the
information.” Accordingly, the employer
in this case “was required to timely provide [the requested] information or to
timely present the Union with its reasons for
not doing so.” The Board majority
rejected the dissent’s argument -- that
no prior cases had ever found a statutory violation when the employer was not
required to respond to a request for irrelevant information -- because the requested information was “presumptively
relevant.”
The question here is not whether the
Respondent had a duty to provide the information sought by the Union, but
rather whether it had a duty to respond to the Union’s request in a timely way.
Employment at Will
Disclaimers. Now, the “good” news. In the last year or so, the NLRB has taken the position that employee
handbook provisions – for both union and non-union employers -- violate the
NLRA if they “explicitly prohibit NLRA-protected union or concerted activity,
such as joining a union or discussing terms and conditions of employment with
coworkers. Even if not explicit, a rule can be unlawful if employees would
reasonably construe the language to prohibit such activity.” It’s the “reasonably construe” language which
has generated derision because there has been nothing reasonable about some of
the construction being done. The NLRB General Counsel has advised that:
Rules that are ambiguous as to their
application to Section 7 activity,
and contain no limiting language or context that would clarify to employees
that the rule does not restrict Section 7
rights, are unlawful. In
contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected
conduct, such that they could not reasonably be construed to cover protected
activity, are not unlawful.
In February, an ALJ ruled that it violated the NRLA for a Red Cross employee
handbook in Arizona to contain an employment-at-will disclaimer which provided,
among other things, that ““I further agree that the at-will employment
relationship cannot be amended, modified or altered in any way.” According to the ALJ,
there is no doubt that “employees
would reasonably construe the language to prohibit Section 7 activity . . . the
signing of the acknowledgement form is essentially a waiver in which an
employee agrees that his/her at-will status cannot change, thereby
relinquishing his/her right to advocate concertedly, whether represented by a union or not, to
change his/her at-will status. For all practical purposes, the clause in
question premises employment on an employee’s agreement not to enter into any
contract, to make any efforts, or to engage in conduct that could result in
union representation and in a collective-bargaining agreement, which would
amend, modify, or alter the at-will relationship. Clearly such a clause would
reasonably chill employees who were interested in exercising their Section 7
rights.
The
employer settled the case rather than appeal it to the NLRB.
·
Employment with
Rocha Transportation is employment at-will. Employment at-will may be
terminated with or without cause and with or without notice at any time by the employee or the Company.
Nothing in this Handbook or in any document or statement shall limit the right
to terminate employment at-will. No manager, supervisor, or employee of Rocha
Transportation has any authority to enter into an agreement for employment for
any specified period of time or to make an agreement for employment other than
at-will. Only the president of the Company has the authority to make any such
agreement and then only in writing.
·
The relationship
between you and Mimi's Cafe is referred to as employment at will." This
means that your employment can be terminated at any time for any reason, with
or without cause, with or without notice, by you or the Company. No representative of the Company has
authority to enter into any agreement contrary to the foregoing
"employment at will" relationship. Nothing contained in this handbook
creates an express or implied contract of employment.
It is commonplace for employers to
rely on policy provisions such as those at issue here as a defense against
potential legal actions by employees
asserting that the employee handbook creates an enforceable employment
contract. See NLRB v. Ace Comb Co.,
342 F.2d 841, 847 (8th Cir. 1965) ("It must be remembered that it is not the purpose of
the Act to give the Board any control whatsoever over an employer's policies,
including his policies concerning tenure of employment, and that an employer
may hire and fire at will for any reason whatsoever, or for no reason, so long
as the motivation is not violative of the Act"); Aeon Precision Company, 239 NLRB 60, 63 (1978) (same);
Aileen, Inc., 218 NLRB 1419, 1422 (1975)
(same).
Accordingly, it rejected the argument that
the NLRA was violated by a handbook which provided that no representative had authority to modify the employment at will
relationship as long as the
disclaimer and/or signed acknowledgement “does not require employees to refrain
from seeking to change their at-will status or to agree that their at-will
status cannot be changed in any way.” Notably, the NLRB General Counsel’s office is
still taking the position that it could violate the NLRA for an employee
handbook provision to “require employees to refrain from seeking to change
their at-will status or to agree that their at-will status cannot be changed in
any way.”
NOTICE:
This summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can change or be amended without notice. Readers should not
act upon this information without legal advice. If you have any questions about
anything you have read, you should consult with or retain an employment
attorney.
