On June 29, 2016, in Graymont PA, Inc., the NLRB held that an employer may be found to have committed an unfair labor practice (ULP) for failing to disclose the nonexistence of documents requested by a union, even absent a specific allegation in the complaint to that effect, if "the issue is closely connected to the subject matter of the complaint and has been fully litigated." The NLRB overruled its contrary precedent. (364 N.L.R.B. No. 37 (June 29, 2016).)

The employer, Graymont, was party to a collective bargaining agreement (CBA) with the union. The CBA contained a management rights clause, which reserved to the employer the right to "adopt and enforce rules and regulations and policies and procedures" and "discipline and discharge for just cause." In February 2014, the employer announced changes to its work rules, absenteeism policy, and progressive discipline schedule. The union asked the employer to discuss the changes and requested documents related to the changes. Graymont denied the request, asserting that the union had waived its right to bargain over the changes by agreeing to the management rights clause and, in turn, it had no obligation to provide any information of that kind.

The union filed a ULP charge and the NLRB's General Counsel issued a complaint. The complaint alleged that Graymont violated its duty to bargain with the union before implementing the changes it announced. It also alleged that the employer "failed and refused to furnish the Union with the information" that the union requested. The complaint did not specifically allege that the employer failed to disclose the nonexistence of the documents requested by the union. In its answer to the complaint and in separate communications with the union before the hearing on the complaint, the employer averred that it had no information that was responsive to the union's request.

An administrative law judge (ALJ) held that Graymont:

The employer and the General Counsel both filed exceptions to the ALJ's decision.

A majority of the panel (Board) heading the NLRB's judicial functions (Chairman Pearce and Members Hirozawa and McFerran) affirmed the ALJ's holding that the employer violated Sections 8(a)(5) and (1) of the NLRA by unilaterally changing its work rules, absenteeism policy, and progressive discipline schedule. The union did not clearly and unmistakably waive its right to bargain over those changes, among other reasons, because:

The majority also held that the employer could be found that have committed a ULP for failing to disclose the nonexistence of documents requested by the union even though the complaint did not specifically include that allegation. The majority noted that:

The Board held that:

Member Miscimarra dissented, finding the employer had no obligation to bargain based on the management rights clause and in turn, no obligation to respond to the union's related request for information.

In Graymont PA, the Board continued to construe narrowly management rights clauses and cases holding that a union waived its right to negotiate about work rules and discipline though management rights clauses.

The Board also expressly overruled a narrow exception to Pergament, effectively reducing the pleading requirements for counsel for the NLRB General Counsel in a subset of Section 8(a)(5) information request cases. The General Counsel no longer must plead a failure to timely disclose the nonexistence of requested information in the alternative to allegations that a party (usually an employer) failed or refused to provide information requested for collective bargaining or CBA administration. Essentially, when counsel for the General Counsel fails to prove an essential element of most information cases -- that responsive information exists -- it can back into an implied allegation that the nonproducing party failed to timely inform the requesting party that no relevant information existed.

As a practical matter, where no information responsive to a request exists, employers may be wise to indicate that promptly and contemporaneously with any challenges to the requesting party's right to that information or other substantive responses. Employers should note that the Board will not defer ULP complaints to arbitration when they include allegations about information requests. Employers that can cut off prospective information request allegations by timely disclosing that the information requested does not exist might have a chance at getting the Board to defer processing of a complaint solely concerning interpretation of the employer's right under a CBA to unilaterally take union-challenged actions.

Although the express holding of the decision is narrow, the Board might use it as a step supporting more sua sponte consideration of unpled violations with a more liberally construed Pergament test.