On February 26, 2015, in United Parcel Service of America, Inc. (UPS), the panel (Board) heading the NLRB's judicial functions affirmed an NLRB administrative law judge's (ALJ) decision finding that an employer did not violate the NLRA when it failed to provide all of the information requested by a local Teamsters union for repeatedly filed grievances alleging that UPS's performance benchmarks forced drivers to work through their lunch breaks. Although much of the requested information concerned bargaining unit employees' employment terms and conditions and was presumptively relevant, the employer's incomplete production was justified because the requests were unduly burdensome and overbroad, and the union failed to address the employer's requests for possible accommodations. As a result, the Board dismissed the General Counsel's unfair labor practice (ULP) complaint based on the union's ULP charges. (362 N.L.R.B. slip op. 22 (Feb. 26, 2015).)

Information about bargaining unit employees' employment terms and conditions is presumptively relevant to negotiating or administering a collective bargaining agreement (CBA) and must generally be provided at the union's request (see Acme Indus. Co., 385 U.S. 432 (1967)). An employer may overcome the presumption of relevance or reduce its obligations to provide information responsive to a union's burdensome or broad request. However, an employer must generally start a dialogue on the issues of relevance, confidentiality, undue burden or overbreadth and offer to work with the union to determine a mutually agreeable accommodation for the latter three issues (see Mission Foods, 345 N.L.R.B. 788 (2005); Am. Cyanamid Co., 129 N.L.R.B. 683, 684 (1960)).

Beginning in November 2011, a local Teamsters union filed grievances on behalf of a group of package drivers claiming that the employer was forcing the drivers to work through their lunch break. The union through its steward formally requested certain information from the employer purportedly related to the grievances, including driver timecards and various other types of documents. The employer objected to the union's requests as mostly irrelevant, overly broad and unduly burdensome and asked the union to provide further details about the information it was requesting. The union merely explained that the information was intended to identify which drivers were not taking their lunch breaks but the union did not explain why it required so many different types of documents, including six different reports on every driver for every day for several months about many topics, including:

Many of these reports contained overlapping data and the union never explained how the requested information was potentially relevant to the issue of whether drivers were working through their lunch breaks.

Between January and April of 2012, the employer and the union exchanged a series of letters in which the employer continued to maintain that the information requested was overly broad and unduly burdensome, repeatedly attempted to propose alternative, less burdensome ways to comply with the union's request, and asked the union to provide a more narrowly focused request. In response to the employer's letters, the union refused to propose or accept alternative ways for the employer to provide information related to the lunch break grievances.

In March 2012, the parties reached an informal settlement agreement on various grievance and ULP charge issues, but that agreement did not resolve the parties' dispute over whether the employer was obligated to comply with the union's request for information. Following the informal settlement agreement, the union filed additional ULP charges against the employer for failing to provide the requested information. An NLRB regional director set aside the settlement agreement and issued a complaint based on the employer's failure to provide the requested documents.

In August 2013, an NLRB ALJ found that the employer did not violate Section 8(a)(1) and 8(a)(5) of the NLRA by failing to provide the requested information to the union. The ALJ found that the employer acted in good faith and the union acted in bad faith, pointing out that the union's steward had not tried to reach an accommodation with the employer for a less burdensome production. The ALJ recommended that the ULP complaint be dismissed. The NLRB's General Counsel excepted to the ALJ's decision.

A three-member panel of the Board:

The Board's decision in United Parcel Service is a rare employer victory among the many ULP cases concerning an employer's purported failure to provide information to a union in violation of Section 8(a)(5). Although the decision is replete with qualifications that the employer's actions were lawful in these circumstances, it should be a decision that employers: