NLRB Must Rethink Relevance Presumption Sanctioning Union's Harassing Data Requests: DC Circuit | Practical Law

NLRB Must Rethink Relevance Presumption Sanctioning Union's Harassing Data Requests: DC Circuit | Practical Law

In IronTiger Logistics, Inc. v. NLRB, the US Court of Appeals for the District of Columbia Circuit upheld the National Labor Relation Board's (NLRB) policy that an employer must timely respond to a union's request for presumptively relevant information but remanded to the NLRB to explain why the information requested in this case was presumptively relevant.

NLRB Must Rethink Relevance Presumption Sanctioning Union's Harassing Data Requests: DC Circuit

by Practical Law Labor & Employment
Law stated as of 24 Jan 2019 • USA (National/Federal)
In IronTiger Logistics, Inc. v. NLRB, the US Court of Appeals for the District of Columbia Circuit upheld the National Labor Relation Board's (NLRB) policy that an employer must timely respond to a union's request for presumptively relevant information but remanded to the NLRB to explain why the information requested in this case was presumptively relevant.
On May 20, 2016, in IronTiger Logistics, Inc. v. NLRB, the US Court of Appeals for the District of Columbia Circuit (DC Circuit) upheld the NLRB's policy that an employer must timely respond to a union's request for presumptively relevant information, even if the information requested turns out to be irrelevant, but remanded to the NLRB to explain why the information requested in this case was presumptively relevant. ( (D.C. Cir. May 20, 2016).)
IronTiger Logistics, Inc. transports trucks from manufacturing to retail sites. IronTiger does not contract with customers but provides shipping for a company named TruckMovers.com, Inc. TruckMovers and IronTiger share common ownership. TruckMovers assigns work to its own drivers and IronTiger's drivers. A union represents IronTiger's drivers but not TruckMovers' drivers. In March 2010, the union filed a grievance about the assignment of work to IronTiger's drivers and followed up by requesting information from IronTiger.
The panel (Board) heading the NLRB's judicial functions held that IronTiger unlawfully delayed in providing information presumptively relevant to the union's representation of IronTiger's drivers in administering the parties' collective bargaining agreement. In particular, the Board held that:
  • The union's extensive information request about deliveries to customers by IronTiger's drivers was presumptively relevant because it concerned work assigned to bargaining unit employees.
  • IronTiger was obligated to timely inform the union of the reasons that it did not believe the information sought was relevant.
  • IronTiger did not meet its obligations under Section 8(a)(5) of the NLRA to bargain in good faith because it waited more than 4.5 months to respond to the union, despite an administrative law judge's (ALJ) finding that:
    • the information by the union was irrelevant to the union's representation of the bargaining unit employees; and
    • because the requested information was irrelevant, IronTiger need not provide it.
(IronTiger Logistics, Inc., 359 N.L.R.B. No. 13 (Oct. 23, 2012); see Legal Update, Employers Required to Respond to Union Request for Irrelevant Information: NLRB.)
The DC Circuit rejected IronTiger's challenge to the NLRB's policy that an employer must timely respond to a union's request for presumptively relevant information, even if the information requested turns out to be irrelevant. However, the DC Circuit remanded to the Board to explain why the information requested in this case was presumptively relevant. Specifically, the DC Circuit noted that:
  • The ALJ did not discuss why the union's request for communications between IronTiger and TruckMovers' customers was presumptively relevant.
  • The union's request for information relating to IronTiger's drivers did not appear to be connected to the dispute between the union and IronTiger.
  • The union representative tacitly agreed that the information was irrelevant when IronTiger's lawyer described the information request as "bullshit."
  • Neither the ALJ nor the Board directly addressed IronTiger's contention that the union's request was harassment and burdensome.

UPDATE:

In a decision dated January 9, 2018, the Board:
  • Reconsidered the ALJ's unexcepted-to finding that on the day after requesting the information at issue the union conceded its irrelevance when agreeing that the request was “bullshit.”
  • Noted that:
    • a party’s obligation with respect to information requests is triggered by requests for relevant information; and
    • the presumption of relevance can be rebutted.
    (United Parcel Serv., 362 N.L.R.B. No. 22, slip op. at 2-13 (Feb. 26, 2015); see also, Beverly California Corp., 326 N.L.R.B. 153, 157 (1998), enforced in part and vacated in part, 227 F.3d 817 (7th Cir. 2000); Columbia Univ., 298 N.L.R.B. 941, 945 (1990).)
  • Held that the employer was not required to take any action after the union's concession of irrelevance in this case.
  • Declined as unnecessary for its holding to:
    • address its underlying holding that information concerning its drivers' loads was presumptive relevant; or
    • rule on the employer's arguments that the union was seeking to harass it by asking for burdensome and irrelevant information, and that the Board should not permit a union to harass an employer with burdensome requests for irrelevant information because the requested information could be said to relate to bargaining unit employees.
(IronTiger Logistics, Inc., 366 N.L.R.B. No. 2, slip op. at 1-2 (Jan. 9, 2018).)

UPDATE

In a decision dated January 24, 2019, the Board reaffirmed the principle noted in the since-vacated 2015 decision in IronTiger Logistics, Inc., that an employer has a duty to respond timely to a union's request for presumptively relevant information, even if the employer ultimately rebuts the presumption of relevance (Michigan Bell Tel. Co., 367 N.L.R.B. No. 74, slip op. at 3, n.12 (Jan. 24, 2019)).