Section 8(a)5 of the National Labor Relations Act imposes on the employer the duty to bargain. This means that the employer must
negotiate in good faith and make reasonable efforts to reach an agreement. Included in this duty to bargain is the requirement that
the employer provide relevant information. which will enable the union to fulfill its duty of representing its members. The duty to
bargain is not ended with the signing of the contract. It continues in force for the life of the contract, as the union enforces and
administers the contract through the grievance procedure. You cannot prove your case without the facts, and if management has the
facts, you should have access to them.
REQUEST
The union must request specific information of the employer, but may not request information in order to harass the employer.
RELEVANCE
If the information is relevant and necessary to the union's function as bargaining agent. management must provide it. Be ready to
explain why the information is necessary.
PROMPTNESS
The requested information must be furnished promptly by the employer. A long and unexplained delay may support a charge against the
employer of refusal to bargain in good faith. The employer must have a good reason for any delay.
FORM
The information provided by the employer must be given in a suitable and usable form. In one case. when the union requested written
documents, the employer was not permitted to give the complicated information orally.
CONFIDENTIALITY
The employer may require that the union keep the information confidential if there is a justifiable reason. For instance, the union must
keep secret employee aptitude test scores.
TYPES OF INFORMATION
In different court cases, management has been required to furnish information on: job rates and classification, incentive earnings,
merit raises, group insurance costs, the scoring method for promotion decision, overtime payments, and the names of witnesses involved in
a discipline case.
Just Cause
A basic principle in discipline cases is that management must have “just cause” to impose the discipline. Arbitrators’ decisions over the
years have resulted in a kind of measuring stick — known as the “Seven Tests of Just Cause” — that can be applied to discipline cases. The
just cause standard is contained in the following seven questions:
- Was the employee adequately warned of the probable consequences of the employee’s conduct?
- Was the employer’s rule or order reasonably related to the efficient and safe operation of the job function?
- Did management investigate before administering the discipline?
- Was management’s investigation fair and objective?
- Did the investigation produce substantial evidence or proof that the employee was guilty of the offense?
- Has the employer applied its rules, orders and penalties evenly and without discrimination?
- Was the amount of discipline reasonably related to the seriousness of the offense and the employee’s past service and record? (Did the “punishment fit the crime?”)