NLRB Rules Employer Should Have Disclosed Lack of Information

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By Lawrence E. Dubé

June 30 — A Pennsylvania company unlawfully failed to tell a union it didn't have any material responsive to the union's request for information about changes in work rules and policies, the National Labor Relations Board held ( Graymont PA, Inc., 2016 BL 208637, 364 N.L.R.B. No. 37, 6/29/16 ).

The board rejected the argument the employer couldn't have violated federal labor law if it didn't have relevant information to give union representatives.

Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Lauren McFerran June 29 overruled a 2007 precedent that limited the NLRB general counsel's ability to pursue such omissions. Reversing an administrative law judge, they found Graymont PA Inc. violated Section 8(a)(5) of the National Labor Relations Act.

The NLRB general counsel's complaint against Graymont never included a specific reference to the omitted information, but the board said the issue was fully litigated and the company's due process rights were not violated.

Union Questioned Employer Changes

According to the decision, Graymont mines lime and produces lime products for industrial and environmental applications. The company has facilities in the U.S. and Canada, including two in western Pennsylvania where about 150 employees are represented by Local Lodge D92 of the United Cement, Lime, Gypsum and Allied Workers.

In February 2014, during the term of a collective bargaining agreement, Graymont announced it would implement changes in rules and policies covering work, absenteeism, and discipline. The union requested information about the changes, including minutes of internal meetings and documents the company “relied on” in deciding to act.

Graymont responded that it had the right under the management rights clause in its collective bargaining agreement to act unilaterally and denied any obligation to answer the union's request.

Board Found Duty to Bargain

Acting on a charge filed by Local Lodge D92, the NLRB's general counsel issued a complaint against Graymont.

The board found 3-1 that the contract did not express a clear waiver of the union's right to bargain about the changes and that the unilateral changes violated the NLRA.

Member Philip A. Miscimarra dissented, finding the contract “plainly authorized” the company's action.

Majority Finds Information Violation

The board also found 3-1 that Graymont violated its duty to furnish information to the union. After the NLRB complaint was issued, the company informed Local D92 it didn't have any information responsive to the union's request, but Pearce, Hirozawa, and McFerran said the delay in making that disclosure to the union was an unfair labor practice.

In Raley's Supermarkets & Drug Centers, 349 N.L.R.B. 26, 181 LRRM 1161 (2007), the board declined to find an NLRA violation based on an employer's failure to disclose that information did not exist, citing the fact that the general counsel's complaint only alleged the employer had delayed in actually providing the information.

Pearce, Hirozawa, and McFerran disagreed, and they overruled Raley's.

Board Overrules 2007 Decision

Citing Pergament United Sales, Inc. v. NLRB, 920 F.2d 130, 135 LRRM 3222 (2d Cir. 1990), the board said an employer is not deprived of due process by a postcomplaint allegation in an NLRB hearing if the allegation is closely related to the subject matter of the complaint and the employer has notice and an opportunity to litigate the issue.

The board said Pergament should be applied to all cases involving information issues that are raised and litigated after the issuance of a complaint. Concluding Raley's was “wrongly decided,” the board said Graymont's failure to answer Local D92's request violated the NLRA.

Miscimarra dissented from the board's finding on the information issue, citing his belief the company had no duty to bargain about the change it made in employment conditions and finding there was no requirement that it answer the union's request for information.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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