United States: D.C. Circuit Puts Potential Limits On The NLRB's "Presumptively Relevant" Policy

In IronTiger Logistics, Inc. v. NLRB, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the NLRB's policy of requiring employers to timely respond to union requests for "presumptively relevant" information (i.e., information relating to bargaining unit employees), but required the Board to explain why specific requests were presumptively relevant.  The court also directed the Board to consider an employer's defenses to union requests for information, including whether the requests were made for improper purposes.   


The employer in this case is a shipping company that hauls trucks from manufacturing plants to retail outlets around the country.  The employer has four locations and employs about 100 drivers who are represented by the International Association of Machinists.        

The employer does not contract with the manufacturers directly.  It is one of 16 companies that may be assigned loads by a third party that contracts with the manufacturers to manage the delivery operations.  Both the employer and this third-party company are owned by the same person, who also serves as the CEO for both companies.

When the third party assigns work to the employer, the jobs appear on a computer "kiosk" at the employer's four locations.  The employer and the union have an agreement that any jobs not appearing on these kiosks are not the employer's jobs and will be handled by another company. 

The dispute in the case arose in March 2010 when the union asserted that too few loads were coming to the employer.  The owner/CEO insisted that all available loads were placed on the kiosk.  Unsatisfied with this response, the union filed a formal grievance.  It also sent a request for information a month later regarding all loads dispatched to the employer and the third party over the previous six months and other information regarding the dispatching of jobs.  The employer responded to the request and identified over 10,000 jobs that had been sent to its kiosk in the previous six months.

On May 11, 2010, the union sent another request to the employer, which included seven questions directed to the third party about its employees and policies.  Regarding the 10,000 jobs sent to the employer, the union asked for the following information:

  1. the name of each driver dispatched for each load;
  2. the destination and mileage for each load; and
  3. all documents from customers to support the loads sent to the company's drivers.

Both sides filed refusal to bargain charges, the employer's based on a threat by the union to strike, and the union's based on the employer's purported failure to timely respond to the May 11 request. 

The employer responded to the union's request on September 27, 2010, asserting that the first seven questions directed to the third party had nothing to do with the employer and that the requests that related to the employer were harassing, burdensome, and sought irrelevant information.        

The NLRB Proceeding        

The Regional Director issued a consolidated complaint on December 30, 2010, with refusal to bargain claims against both parties.  The union settled the claim alleged against it, while the claim against the company proceeded to hearing before an administrative law judge (the "ALJ").  The ALJ found the requests for information relating to the third party were irrelevant but that the information relating to the employer were presumptively relevant and therefore the employer's failure to timely respond to those requests violated the Act.  The Board, with one member dissenting, essentially adopted the ALJ's decision.  The Board agreed with the ALJ that the requests directed to the third party were not only irrelevant but presumptively irrelevant because they did not relate to the employer.  The Board also agreed with the ALJ that the three requests directed to the employer were irrelevant because they had nothing to do with the union's grievance relating to the alleged failure to place loads on the employer's kiosk.  The Board noted also that the union had not explained why it needed the information.    

Nonetheless, the Board found that although upon analysis they were irrelevant, the three requests to the employer were presumptively relevant because they related to "unit employees."  Accordingly, the Board held that the employer's delay in responding violated its obligation to bargain.  The Board did not address the company's defense that the requests were burdensome and harassing.     

The D.C. Circuit's Holding

The D.C. Circuit upheld the Board's policy requiring employers to timely respond to union requests for presumptively relevant information.  However, the court took issue with the Board's determination that the three requests directed to the employer were presumptively relevant.  Among other things, the court noted that it "cannot imagine" how the employer's customer documents could be presumptively relevant because they do not relate in any way to bargaining unit employees.  The court further observed that the same evidence relied upon by the ALJ to find the requested information irrelevant was also known to the employer. When the employer questioned the union's need for the information, the union failed to explain why it was needed.  On what basis, then, did the Board consider the request as one involving presumptively relevant information?

The court remanded the case for the Board to address this question.  The court also directed the Board to consider the employer's defenses to the requests "and the implication of a rule that would permit a union to harass an employer by repeated and burdensome requests for irrelevant information" as long as the request "somehow relates to the bargaining unit employees." 

This case reaffirms that when a union requests "presumptively relevant" information, employers must timely respond to the request, even if the information is not relevant in fact, and even if the employer considers the request to be made in bad faith and for the purposes of harassment.  The proper response in such circumstances is to share with the union why the employer does not believe it is under an obligation to produce the information.  It remains to be seen whether, on remand, the Board will consider the broader policy implications raised by the court, or will simply conclude that the requested information was not so clearly irrelevant at the time that the employer was excused from a more timely response.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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