Still looking for classes to round out your schedule? There are openings in several L&E classes taught by some of our amazing adjunct professors! Check out ERISA Pensions and Benefits, Protective Legislation for Workers, and Advanced Labor Law for taught by John Campbell, Evan Barouh and Troy Rosasco, and Karen Fernbach, respectively. These classes are a great way to learn from current practitioners in the field!
On October 23, 2012, the National Labor Relations Board (NLRB or the Board) issued an order in IronTiger Logistics, Inc. and International Association of Machinists and Aerospace Workers, AFL-CIO. The case was decided by a three-member panel of the Board; the panel consisted of Chairman Pierce and Members Hayes and Block. The case centered on whether IronTiger had violated Section 8(a)(1) and Section 8(a)(5) of the National Labor Relations Act (NLRA or the Act). The NLRB affirmed the ruling of the Administrative Law Judge (ALJ), which held a violation did occur.
IronTiger Logistics, Inc. (IronTiger) is based out of Kansas City, Missouri, and “employs approximately 100 employees at four locations.” The main business of IronTiger is moving freight. The company has a close relationship with another company, TruckMovers.com, Inc. (TruckMovers), which assigns loads to both IronTiger drivers and TruckMovers drivers. IronTiger’s drivers are unionized; TruckMovers’ drivers are not unionized. The union and IronTiger signed a Letter of Agreement which clarified that any loads that were given to TruckMovers drivers would not be considered IronTiger loads, meaning the loads were not work that was being subcontracted by IronTiger to avoid using union drivers.
The union began to suspect that the dispatching process was not working as it was supposed to. It believed IronTiger was not placing all of the available loads on its dispatch board and that, as a result, TruckMovers drivers were getting assignments that should have been going to union drivers. The union filed a grievance on March 29, 2011, and a few weeks later requested information pertaining to the loads that had been assigned to all drivers by TruckMovers, which IronTiger provided. The union then requested additional detailed information regarding the loads on the list IronTiger had provided; in part, the union requested the name of the driver that had been assigned to each load, the destination each load was delivered to, and “relevant communication” from the entities receiving each load. After IronTiger did not respond to the request for additional information, the union filed an unfair labor practice claim with the NLRB. Eventually, IronTiger responded to the union’s request by stating that the information about the loads assigned to TruckMovers drivers had no bearing on the union’s claim, as those drivers were not members of the union. IronTiger further stated that it did not have to provide the information requested pertaining to its drivers, members of the union, because the shipments in question had already been delivered and, therefore, the information being requested was not relevant.
Section 8(a)(5) of the Act places a duty on the employer to respond to requests from the union for information that is relevant to the union complying with its responsibilities to its members. The employer must provide the response in a “timely manner.” The ALJ held that the information requested by the union in this case was “presumptively relevant” to the union’s objective. As such, IronTiger was required to respond to the union’s request in a timely manner, even if the response simply explained why IronTiger believed it did not have to provide the information to the union. The ALJ further held that the information the union had requested was, indeed, irrelevant to the union’s claim and, therefore, IronTiger was not required to provide the information.
The Board upheld the ALJ’s determination, stating that the issue in this case was whether IronTiger had to respond to the request, not whether IronTiger had to provide the requested information. The Board cited a “well-established corollary” to Section 8(a)(5) which requires an employer to respond to a request for information from a recognized union, regardless of whether the employer believes it must actually provide the information that has been requested. The information being requested must only be presumptively relevant to trigger the duty of the employer to respond. In the Board’s view, it is appropriate to place the burden on the employer to respond because the employer “is in a clearly superior position to ensure that a dispute is avoided.”
Member Hayes dissented to the order, stating his belief that the corollary to Section 8(a)(5) cited by the majority does not exist, but rather that information is either relevant or irrelevant. In the case that the information is irrelevant, the employer should not be required to respond, according to Member Hayes, because it would open the door for unions to request information for strategic reasons that have no bearing on collective bargaining.