The National Labor Relations Board is considering whether to change the current standard governing union information requests when an employer decides to relocate its business. In a memorandum (pdf) sent to all NLRB regional offices, Associate General Counsel Richard A. Siegel explains that in light of Chair Wilma Liebman’s recommendations made in her concurring opinion to the recent case Embarq Corporation and International Brotherhood of Electrical Workers Local Union No. 396, the General Counsel’s office is determining whether to modify the existing framework for assessing whether an employer must accede to a union’s demand for information prior to relocation.

In Embarq, the Board, applying the standard outlined in the 1991 case Dubuque Packing Co. for determining whether a relocation decision is a mandatory subject of bargaining, found that a company’s relocation was not a mandatory subject of bargaining because the employer had sufficiently demonstrated that the union could not have offered labor-cost concessions sufficient to change its decision to relocate. The Board further explained that because the decision to move was not a mandatory subject of bargaining, the employer was not required to provide the union with information related to the decision to relocate. In her concurring decision, Liebman noted that “current law does not compel the production of information at the time when it is sought – or, indeed, ever – if the Board, in hindsight, determines that concessions would have made no difference, even where . . . no bargaining ever occurred and the union had no opportunity to explore or influence the employer’s decision.”

In this concurrence, Liebman suggested that the framework established by Dubuque Packing be revised to require employers to provide requested information about relocation decisions whenever there is a “reasonable likelihood” that labor-cost concessions might affect the decision. As explained in the memorandum, under Liebman’s suggested change, if the employer provided the information and the union failed to offer concessions, the union would be precluded from arguing to the Board that it could have made concessions that would have altered the relocation decision. If, on the other hand, the employer failed to provide such information, in a situation where labor costs were indeed a factor in the relocation decision, it would be precluded from arguing that the union could not have made sufficient concessions to alter the decision. In other words, in Liebman’s view, failure to furnish information regarding the decision, where labor costs are a factor, will undermine (if not defeat completely) an employer’s argument that it was under no duty to bargain over the relocation decision.

To this end, the memorandum directs all regions to submit to the Division of Advice “all cases presenting the question of whether an employer violated Section 8(a)(5) by refusing to provide information related to a relocation or other decision properly analyzed under Dubuque Packing” for the express purpose of determining whether to create a new standard associated with an employer’s duty to furnish information in relocation situations. The practical take-away is that employers should closely scrutinize requests for information that they receive in the context of relocation decisions and requests by unions to bargain over such decisions, to determine whether such requests might fit within this potential “new” framework suggested by the Board.

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