NLRB Advice Memoranda, Operating Engineers Local 428 (Transdev Srvcs., Inc.), National Labor Relations Board, (May 11, 2022)

The Region submitted this case for advice on whether the Union was obligated to provide the Employer with results of an employee survey – taken by a different labor organization representing a different bargaining unit — regarding the Employer's Covid-19 protocols when the Union cited the survey results to dispute the Employer's contention that it maintained a safe and healthy workplace in light of the dangers posed by Covid-19. For the reasons discussed below, we conclude that the instant charge should be dismissed, absent withdrawal.

During negotiations for a successor bargaining agreement, the Union expressed disagreement with the Employer's assertions that it was committed to the safety and health of its employees and that it was following state and federal guidelines related to Covid-19. The Union provided statistics from a survey of employees taken by a different union indicating that the Employer was failing to follow internal, local, and federal safety guidelines and informed the Employer that it was relying on the survey results during the parties' discussions of management rights, leaves of absence, vacations, and health and safety. Thereafter, the Employer requested a copy of the survey and its results in order to verify the accuracy of the Union's assertions, a request the Union denied.

The Board has found that a party is not required to rely solely on the other party's assertions regarding the reason for its bargaining proposals and the other party is obligated, if asked, to provide information it relies on in advancing its bargaining proposals. See Circuit-Wise, Inc., 306 NLRB 766, 768-69 (1992) (employer required to provide union with financial information it requested in connection with the employer's proposal for a profit based retirement plan), enforced, 992 F.2d 319 (2d Cir. 1993). Here, however, the Union was not obligated to provide the requested information because the survey was a communication between a union and its members used to refute the Employer's claims in bargaining. In this regard, the instant case is akin to a case summarized in General Counsel Memorandum GC 05-03 (July 8, 2005) where it was determined that a union had no obligation to furnish an employer with the results of an employee survey taken in connection with bargaining for a successor agreement. See GC 05-03, at 16-17 (citing Obie Pacific, Inc., 196 NLRB 458, 458-59 (1973)). As was explained in that case, “the employee survey results contain employee sentiments that may indicate the [u]nion's bargaining strategy in negotiations, and requiring disclosure of those results to the [e]mployer would infringe upon the [u]nion's status as bargaining representative and ultimately hinder the collective bargaining.” GC 05-03, at 16-17. Although the case described in the GC Memorandum involved employee sentiments regarding seniority provisions, and the instant case involves factual assertions regarding the Employer's conduct, the same principle applies, i.e., the Union is not required to turn over internal communications involving Union members. That is particularly true here, where the evidence reflects that the Union used the survey results to dispute the Employer's assertions regarding health and safety.

Nor does the Board's decision in United Technologies Corp., 274 NLRB 1069 (1985) undermine our determination, as we find that case distinguishable. There, the Board found that an employer was required to provide a union with results from a survey it had taken of unit employees regarding their knowledge of the employer's benefits. Id. at 1071-72. However, the employer in that case offered no explanation to the union for its refusal to supply the requested information whereas here the Union informed the Employer that its request intruded into communications between the Union and the bargaining unit. We conclude that consideration governs the outcome here. Any other conclusion would reasonably chill employees from communicating with their bargaining representative for fear that those communications could be disclosed to an employer. [1] Our determination highlights the fundamental difference between the relationship between the Employer and its employees and the one the Union has with the employees it is duty bound to represent.

In sum, for the reasons set forth above it would be inappropriate to require the Union to provide the Employer with a copy of the survey.

This email closes the case in Advice as of today. Please feel free to contact us with any questions or concerns.

Thanks,

​     ​ Kayce Compton

​     ​