Employee's Request to Keep Union Out of Sexual Harassment Investigation and Related Discipline Did Not Moot Employer's Duty to Provide Information: NLRB | Practical Law

Employee's Request to Keep Union Out of Sexual Harassment Investigation and Related Discipline Did Not Moot Employer's Duty to Provide Information: NLRB | Practical Law

In NACCO Material Handling Group Inc., the National Labor Relations Board (NLRB) held that an employer that refused, at a bargaining unit employee's request, to provide information requested by the union about the employee's discipline  for sexual harassment, committed an unfair labor practice (ULP) under the National Labor Relations Act (NLRA).

Employee's Request to Keep Union Out of Sexual Harassment Investigation and Related Discipline Did Not Moot Employer's Duty to Provide Information: NLRB

by PLC Labor & Employment
Published on 01 Jul 2013 • USA (National/Federal)
In NACCO Material Handling Group Inc., the National Labor Relations Board (NLRB) held that an employer that refused, at a bargaining unit employee's request, to provide information requested by the union about the employee's discipline for sexual harassment, committed an unfair labor practice (ULP) under the National Labor Relations Act (NLRA).
On June 21, 2013, in NACCO Material Handling Group Inc., the NLRB issued an opinion holding that an employer that, at the request of a bargaining unit employee, refused to provide information requested by the union about that employee's discipline for sexual harassment, committed an unfair labor practice (ULP) under the NLRA.

Background

NACCO Material Handling Group Inc. (NACCO) is a corporation that stores and distributes aftermarket parts for lift trucks from its parts distribution center in Illinois. Some of NACCO's employees have been unionized for many years.
In early 2012, NACCO's human resources (HR) manager received a complaint that a bargaining unit employee sexually harassed a coworker. NACCO investigated the allegation in part by interviewing the bargaining unit employee. The HR manager asked the employee whether he wanted a union representative for the investigative interview. The employee:
  • Declined the offer to have a representative present for the interview.
  • Requested that NACCO keep its investigation and any resulting discipline confidential, including by keeping his union out of the matter.
NACCO later disciplined the bargaining unit employee. In March 2012, on hearing rumors that NACCO disciplined a bargaining unit employee for alleged sexual harassment, the union president verbally requested information about any disciplinary action against the employee. The HR manager declined to provide him with that information.
During the same time frame, the union's chief steward at NACCO met with the HR manager to ask if management had taken disciplinary action against the employee. The HR manager told the steward that she could not discuss the matter.
The union president and steward sent a written request to the HR manager for information about any discipline that NACCO imposed on the bargaining unit employee for alleged sexual harassment, noting that the union was:
  • Not asking for the details of the alleged sexual harassment.
  • Wanted to know the disciplinary action that NACCO took or intended to take against the bargaining unit employee.
The HR manager:
  • Explained that:
    • the bargaining unit employee asked that the matter be kept confidential, including by not disclosing information about it to his union;
    • she had told the bargaining unit employee that the union had made a request for information and he had responded that he would "handle" the request if the union approached him.
  • Never provided the information to the union.
The union filed ULP charges against NACCO alleging, among other claims, that NACCO failed to provide requested information necessary for administering the party's collective bargaining agreement (CBA). An NLRB administrative law judge (ALJ):
  • Found that the information that the union sought was presumptively relevant because it related to discipline of a bargaining unit employee and generally to administering the CBA with NACCO. In particular, the evidence had shown that the union needed the information:
    • to ensure that discipline for future acts by bargaining unit employees would be handled uniformly.
    • to allow the union to effectively monitor and enforce the terms of the CBA;
  • Cited NLRB precedent holding that:
    • information about terms and conditions of bargaining unit employees' terms and conditions of employment, including grounds for and extent of discipline are presumptively relevant to CBA administration;
    • a union is not required to wait until a grievance is pending to make an information request to the employer. It may request information that would aid its deciding whether to file a grievance under the CBA (Ohio Power Co.; Leland Stanford Junior Univ.);
    • a party asserting that requested information is confidential must not only prove its confidential nature but also bargain in an attempt to accommodate the requesting party's need for the information while preserving its confidentiality;
    • the availability of information from another source does not alter a party's duty to provide relevant and necessary information that is readily available (Holyoke Water Power Co.);
    • where an employer does not timely respond to a request for information the union need not repeat the request (Bundy Corp.); and
    • a CBA's silence about whether an employer must provide particular information to the union does not change the employer's statutory obligation to provide it under the NLRA.
  • Reasoned that the bargaining unit employee's wish in this case to keep the investigation and his discipline for alleged sexual harassment from his union and to not challenge his discipline through the CBA's grievance procedure could not override his union's right to information about his discipline to administer the CBA for the entire bargaining unit. In particular, the ALJ explained that:
    • to base the union's right to enforce the CBA on the whim of bargaining unit employees to file grievances is not an outcome envisioned by the NLRA; and
    • there is no provision in the CBA that prohibits the union from filing a grievance without the authorization of the employee or employees.
  • Held that NACCO unlawfully:
    • failed to provide the requested presumptively relevant information; and
    • unilaterally abandoned its past practice of allowing the union vice president to use the company-paid-time allotted to the chief steward when substituting for the chief steward.

Outcome

The panel (Board) heading the NLRB's adjudicative functions affirmed the ALJ's analysis and decision.

Practical Implications

Employers should be aware that collective bargaining obligations, including duties to provide relevant information requested by unions for administering CBAs, cannot be easily waived because of statements or actions of individual bargaining unit employees. Employers should keep this case in mind whenever a bargaining unit employee:
  • Requests that an employer keep matters confidential.
  • Asks that the employer keep his union out of disciplinary proceedings.
  • Asserts that he will provide information requested by his union that is both in his and the employer's possession. Employers have statutory (and often contractual) notice and bargaining obligations regarding unions about many subjects that cannot be borne, even voluntarily, by an individual bargaining unit employee.

Court Documents