Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—NLRB.: Employer proved that requested information regarding parking delays did not exist, (Feb 20, 2026)

By Ronald Miller, J.D.

The employer satisfied its burden of proving that the requested information did not exist.

The NLRB reversed an administrative law judge’s finding an employer violated NLRA Section 8(a)(5) and (1) by failing to provide a union with documentation that specifically demonstrated its productivity management program takes into account the time needed to find parking in a congested downtown/urban environment. The ALJ found that the employer failed to reasonably search whether the requested information existed. However, the Board pointed out that testimony offered by the employer that it did not possess the requested information was consistent with the employer’s responses to the union that it did not possess specific documentation showing how drive and parking time affected productivity scores (Qwest Corp., a subsidiary of Lumen Technologies, Inc. fka Centurylink, Inc., 374 N.L.R.B. No. 34 (Feb. 11, 2026)).

The employer is a nationwide telecommunications company. Two unions represent the employer’s technicians, who install and repair telephone and Internet services in Seattle, Washington. The employer uses a digital application to dispatch technicians to jobs and track their task completion, and a productivity management program to evaluate technician performance.

In the fall of 2021, each of the unions requested information for three separate grievances filed over discipline imposed on unit employees for poor performance relating to low productivity scores as measured by the productivity program.

Information requests. On September 16, 2021, an official with Communications Workers of America, Local 7800, requested that the employer provide the union with documentation that specifically demonstrates that its productivity management program takes into account the time needed to find parking in a congested downtown/urban environment. The information was requested for the purpose of assisting Local 7800 in processing a grievance over discipline imposed on a unit technician for poor performance based on a low productivity score.

Ultimately, the employer responded that the credit values for jobs are based on a yearly average of actual duration and include the uniqueness of, but not limited to, parking, traffic, plant conditions, hold times, etc., but that it did not have specific documentation of this. In a later response to the union, the employer confirmed that it did not possess “specific documentation about excessive parking time.”

On September 28, the union again emailed the employer, stating, “there must be an actual value that is used” and asked for how much time is built into each job task for “drive times, parking, traffic, plant conditions, hold times, and difficulty.” The employer again confirmed that it could not provide that level of detail and specificity because the time is based on a company average, therefore it could not break it down to that level.

Reasonable search. The ALJ found that the employer violated Section 8(a)(5) and (1) by failing to reasonably search whether the requested information existed and whether/how it could be timely produced and refusing to furnish Local 7800 with “all documents proving that/how drive/traffic and parking times were calculated.” The law judge found that the employer did, in fact, have documentation on nationwide task times that could have been provided upon request.

Contrary to the ALJ, the Board found that the employer satisfied its burden of proving that the requested information did not exist. The testimony of a Business Intelligence Analyst employed by the employer stating that it did not possess the requested information was consistent with the employer’s replies to the union that it did not possess specific documentation showing how drive and parking time affected productivity scores.

Throughout the exchanges between the employer and the union, the employer maintained that it did not possess the information that the union requested, and there was no evidence indicating otherwise. In these circumstances, the Board found that the employer satisfied its burden of proving that the requested information did not exist.

Dispatch application. On August 17, 2021, an official of Local 7800 requested information relating to all instances in July 2021 that the employer’s digital application to dispatch technicians was down, had server errors, or otherwise was not usable for any job-related purposes. The union requested the information in order to assist it in processing a grievance for a technician who had been disciplined for a low productivity score, for the purpose of determining whether system outages were negatively affecting unit technicians’ productivity scores.

On September 1, the employer responded with a chart listing two dates that the dispatch application had experienced system outages. The union official responded that he had personally experienced difficulties using the application on eight additional dates. Thereafter, the employer’s IT department confirmed that they recorded only two outages during July 2021.

The employer advised the union that it did not have any more information, and that it had provided the union with everything it had record of. However, the union official stated that he did not recall having an additional conversation on this topic.

Contradictory testimony. The ALJ found that the employer violated Section 8(a)(5) and (1) by refusing to furnish Local 7800 with information concerning dispatch application outages in July 2021. In doing so, the ALJ noted that after the employer had responded to the union’s initial request for information concerning outages in July 2021, it “never followed up with Walker/Local 7800” to provide the clarifying information received from the IT department. According to the ALJ, this constituted only a partial response to the union’s information request.

However, the Board disagreed with the ALJ’s finding that it was “undisputed” the employer never relayed additional information to the union. The employer offered testimony that it had provided the clarifying information to the union, either in person or over the phone. But the union official testified that he did not believe he had been provided with any clarifying information.

In light of this contradictory testimony, which the ALJ did not resolve through credibility determinations, the Board concluded that it was unable to determine whether the employer provided clarifying information to the union, and, if it did, in what form. According to the Board, this specific finding was necessary to decide the issue of whether the employer sufficiently responded to the union’s information request. Accordingly, the Board severed this allegation and remanded it for determinative credibility resolutions and factual findings consistent with this decision.

The slip opinion is 374 NLRB No. 34.

Attorneys: Elizabeth DeVleming, for General Counsel. Patrick Scully (Foley Hoag) for Qwest Corporation, a subsidiary of Lumen Technologies, Inc. fka Centurylink, Inc. William R. Reinken (Rosenblatt & Gosch) for Communications Workers of America, Local 7800 and Communications Workers of America District 7.

Companies: Qwest Corporation; Lumen Technologies, Inc.; Centurylink, Inc.; Communications Workers of America, Local 7800; Communications Workers of America District 7

Cases: Labor UnfairLaborPractices AgencyNews