NLRB Advice Memoranda, Trustees of Grinnell College, National Labor Relations Board, (May 25, 2023)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

133-0100-0000-0000

530-6067-6067-6000

530-6067-6067-5200

530-6067-6067-6033

This case was submitted for advice as to whether the Employer violated the Act when it refused to provide names, contact information, and job titles for unit employees as requested by the Union. The Employer asserted that the requested information included confidential education records and providing it to the Union without student-employees' consent would run afoul of the Employer's duties under the Family Educational Rights and Privacy Act of 1974 (“FERPA”). We first conclude that the Employer failed to show that the records requested are education records as defined by FERPA and therefore failed to establish it had a legitimate and substantial confidentiality interest in the requested information. Accordingly, the Employer violated Section 8(a)(5) by failing to provide the Union with the information. Second, even assuming FERPA applies to the requested information, we conclude that issuance of complaint, absent settlement, is still appropriate. Although the Employer satisfied its initial obligation to offer an accommodation on how to provide the information while complying with FERPA, and the parties met and bargained over accommodation proposals, the parties could not reach agreement to resolve the dispute. Thus, the Board must balance the parties' interests and strike an appropriate accommodation in light of the parties' proposals. In litigating this case, the Region should take the position that the proper balancing and accommodation here is for the Employer to affirmatively seek releases from student-employees actually covered by FERPA and, for those who refuse or fail to sign a release, provide the Union with de-identified information.

FACTS

Grinnell College (“Employer”) is a private not-for-profit college in Grinnell, Iowa that educates undergraduate students. The Union of Grinnell Student Dining Workers (“Union”) was initially formed in 2016 to represent the Employer's dining hall student-employees. After the Union was elected and certified, the parties entered into multiple successive collective-bargaining agreements. The most recent collective-bargaining agreement is effective from July 1, 2021 to June 30, 2023.

In early 2022, [1] the Union sought to represent all of the Employer's student-employees. The Employer and Union entered into a neutrality agreement in March, and in May the Union won the election and was certified as the representative of virtually all student-employees. Soon after, the Union sought to accrete into the unit the Employer's Community Advisors, who had been explicitly excluded from the certified unit. The Employer voluntarily recognized the Union as the representative of those additional student-employees upon a showing of majority support via card check.

On June 28, in preparation for bargaining for a successor contract, the Union emailed the Employer an information request seeking, among other items, names, contact information, and bargaining unit job titles for all bargaining unit student-employees as well as race, ethnicity, and gender for each unit member. On July 6, the Employer informed the Union that information on individual student-employees implicated FERPA and the Employer would need each student-employee to sign a release before the Employer could provide such unit data. [2]

FERPA protects the privacy of student education records; colleges or universities that violate FERPA are subject to the loss of federal funding. [3] FERPA provides that postsecondary schools must obtain a student's written, prior consent when disclosing “personally identifiable information” from education records, unless an exception applies. [4] The exceptions include, among others, records that are considered student “directory information.” [5]

On July 15 and 18, the Union communicated its view that FERPA releases were not necessary to disclose unit membership and contact information because the Employer provided the Union with similar information in the past without obtaining releases, [6] it constituted directory information, and employment information is not an education record. As to the request for race, ethnicity, and gender information, the Union consented to the Employer providing aggregate, de-identified data instead.

In its reply on July 19, the Employer asserted that the intersection of the Act and FERPA was a developing area of law and that it had to balance its duties under the Act with its duty to keep students' personal information confidential under FERPA. The Employer explained that when directory information is combined, directly or indirectly, with private information, a FERPA release is required. In other words, providing directory information, such as names and contact information, for a subset of students—e.g. only those employed by the college—would be prohibited absent their consent. The Employer offered to contact students to obtain such releases. It also indicated that it was exploring the possibility of a blanket release authorizing disclosure of employment data to the Union to avoid the need for releases for each information request. The Employer offered to meet and the Union requested that the parties do so.

On August 1, the parties met to discuss the issues concerning the information request and FERPA. The Union pressed the Employer as to why it had changed its position on needing individual releases to furnish information, whether the requested records were actually education records, and why such information was not covered by the directory information exemption, especially since it had been provided in the past. The Employer reiterated that this was an evolving area of law, explained that its understanding of the law had changed, and that these were education records that required a release. The Employer also distinguished between voter lists provided during the unionization process and unit information relevant to the collective-bargaining process. [7] The Union inquired about the downside risk of furnishing the information without releases and pointed out that some employment information was already effectively public since the Employer published lists of Community Advisors and other positions to the student body. The Union also noted that it was aware of another college that agreed to provide similar information to the corresponding union without a FERPA release. The Union suggested that the parties employ an opt-out process—i.e., students would be notified of the expected release of information and could object to the disclosure of their individual information—and asserted that the collective-bargaining agreement contemplated such a process. [8] The Employer responded that it would need to speak with legal counsel about the opt-out proposal. The Employer offered to give the Union a roster of students and the Union could reach out to students directly to obtain FERPA releases. The Union told the Employer that it would file an unfair labor practice charge with the Board if the Employer did not immediately provide the requested information without FERPA releases. It further stated that the Employer's insistence on releases meant the information would not be provided in a timely manner, which would impede the Union's ability to negotiate. The parties were unable to reach an accommodation during the meeting. That evening, the Union followed up with the Employer by email asking for a response on the one-time opt-out suggestion.

On August 3, the Employer notified the Union that it would not be able to provide the requested information without a FERPA release from each student. It explained that an opt-out process would not meet FERPA standards. It offered to provide generic pay and position data and to use its electronic communications system to request release authorizations from student-employees. The Union responded on August 4, complaining that the Employer was deviating from its prior practice and suggesting the Employer designate certain employment data “directory information.” According to the Union, that process contemplates an opt-out period and the Union proposed giving student-employees a week to opt out. The Union informed the Employer if it did not guarantee within 48 hours that the information would be provided either with no release or via an opt-out process, the Union would file an unfair labor practice charge with the Board.

On August 6, the Employer responded and listed four options for the Union to choose from on how to proceed: (1) obtain FERPA releases from students, which the Employer again offered to send out to student-employees; (2) provide generic pay and position data not linked to any personally identifiable information as well as a list of enrolled students; (3) consider altering “directory information” to include place and position of employment (but not any other employment-related information), which the Employer cautioned would first require considerable deliberation with key stakeholders in the campus community; or (4) file an unfair labor practice charge.

On August 8, the Union replied that none of those options satisfied the Employer's obligation to provide information under the Act. While the Union expressed appreciation for the Employer's willingness to explore designating certain employment information as directory information, it disagreed with the need for stakeholder deliberations, which would cause further delay. Accordingly, the Union proceeded with filing the instant charge alleging a failure to furnish names, contact information, and job titles for the bargaining unit. The Union subsequently requested, and the Employer provided, estimates as to how long each of the above options would take. The parties have yet to reach agreement on how to proceed.

ACTION

We first conclude that the Region should issue complaint, absent settlement, alleging the Employer violated Section 8(a)(5) by refusing to furnish the requested unit information because the Employer has failed to establish that the information was subject to FERPA. Second, even assuming it could substantiate its confidentiality interest, complaint should issue because the parties could not reach an accommodation and the information at issue has not been provided. The Region should then submit to the Board that the appropriate balance and accommodation in the instant case is for the Employer to affirmatively seek FERPA releases from any student-employees who are actually covered by FERPA, turn over the information to the Union for those who signed, and, because some may fail or refuse to sign a release, provide the Union with their respective de-identified information.

A. Legal Principles

A collective-bargaining representative is entitled to information relevant and necessary to carry out its statutory duties and responsibilities, including bargaining for a successor collective-bargaining agreement. [9] When an employer asserts that information requested by a union is confidential, the Board balances the union's need for the relevant information against any legitimate and substantial confidentiality interests asserted by the employer. [10] When the assertion stems from a state or federal law, the Board will consider that in its assessment of whether a legitimate confidentiality interest exists. [11] The employer has the burden to establish that it has such a confidentiality interest and that this interest outweighs the union's need for the information. [12] If established, the employer may not simply refuse to furnish the requested information but must seek an accommodation with the union that will effectuate the union's interest in obtaining the information. [13] Thus, it is the employer's duty to offer the union a reasonable accommodation. [14] If the union is not satisfied with the employer's proffered accommodation, it is required to respond and explain why the employer's offer is insufficient but it need not propose a precise alternative. [15] Where the parties are unable to reach an accommodation, despite good faith bargaining, the Board will balance the parties' respective interests and strike an accommodation “in light of proposals made during bargaining.” [16]

B. The Employer Failed to Show its Confidentiality Interest in the Requested Information Was Legitimate and Substantial

Under FERPA, postsecondary schools must obtain a student's written, prior consent when disclosing “personally identifiable information” contained in education records unless an exception applies. [17] Employment records are only subject to FERPA as education records if the student-employee is “employed as a result of [their] status as a student.” [18]

Here, although the Employer, as an educational institution, has a substantial and legitimate confidentiality interest in education records subject to FERPA, the Employer has failed to show that the particular student-employee records sought by the Union meet the definition of education records under FERPA. We recognize where FERPA confidentiality requirements are established, the Employer has a significant stake in complying with the statute because it otherwise risks losing its federal funding. [19] But not all student employment records are covered by FERPA. Indeed, while a graduate student working for a university-employer as a teaching assistant or a resident assistant working in student housing might fairly be assumed to be employed contingent on being a student, the same cannot be said of a student-employee working in the dining hall, such as those included in the unit at issue here. [20] Accordingly, the Employer had the burden to show that the employment of the students covered by the request is contingent on them being enrolled at the college in order for its invocation of FERPA to be effective and it failed to meet this burden. For example, it has not provided job announcements describing that only enrolled students may apply or employment contracts demonstrating that employment was dependent on student status. Thus, the Employer unlawfully failed to furnish the unit information requested by the Union because its confidentiality concerns are unsubstantiated.

C. Even Assuming a Legitimate and Substantial Confidentiality Interest Exists, Complaint Should Issue to Allow the Board to Balance the Parties' Interests

Assuming the Employer had shown the records were subject to FERPA, issuance of complaint, absent settlement, is nonetheless warranted in this case. We recognize that the Employer generally complied with the duties imposed on a party raising confidentiality concerns in response to an information request. It timely raised its confidentiality interests with the Union and presented a reasonable accommodation by offering to seek written releases from students so that it could provide the requested information to the Union and still comply with its FERPA obligations. [21] The parties also engaged in back-and-forth, good faith discussions to try to reach agreement on a satisfactory accommodation. The parties met to discuss accommodation options and continued the exchange of ideas over email. Ultimately, however, the parties were not able to reach agreement and the requested information has not yet been provided in any form. Thus, at this point, the Board needs to strike an accommodation in light of the options discussed by the parties.

We note that this case is distinguishable from Allen Storage & Moving, where the Board dismissed the information request allegation against the employer because the employer there offered an accommodation but the union failed to accept it and did not engage in any discussions or provide an explanation. [22] Here, although the Union failed to accept any of the Employer's offers, it engaged in discussions about alternative options for obtaining the information, conveyed the reasons for its skepticism of the Employer's FERPA-based concerns, and gave explanations as to why the proffered accommodations were unsatisfactory. Indeed, the Union offered counter proposals, which the Employer rejected, claiming they did not satisfy FERPA's disclosure requirements or would take significant time to implement.

Because the parties were unable to achieve an accommodation through bargaining, issuing complaint alleging the Employer violated Section 8(a)(5) is necessary to present the issue to the Board so that it may balance the parties' interests and determine an appropriate accommodation in light of their proposals during bargaining. In this case, the Region should urge the Board to order the Employer—as to any student-employees' records that the Employer has established are subject to FERPA—to obtain individual FERPA releases from those student-employees and provide the information for those who signed. Because some students may fail or refuse to execute a release, the Employer should also provide the Union with de-identified information about those bargaining unit employees. This approach properly balances the Employer's duties under the Act and FERPA while also recognizing the Union's legitimate need to receive the information and its stated interest in doing so as expeditiously as possible. [23]

Accordingly, for the foregoing reasons, the Region should issue complaint, absent settlement. [24]

/s/

R.A.B.

ADV.18-CA-300972.Response.Grinnell. ____________________ docx