Grievance Focus: Gathering Information and Legal Authorities

GRIEVANCE FOCUS: GATHERING INFORMATION NOAH BARISH, MCKANNA BISHOP JOFFE LLP

Overview Legal Authorities What should you ask for? When/how should you seek it? How do you deal with employer tactics? Special Issues Example Requests

LEGAL AUTHORITIES

- Info relevant to bargaining -NLRA (Section 8(a)(5)) - Info relevant to grievances -NLRB v. Truitt Manufacturing Company, 351 U.S. 149 (1956); NLRB v. Acme Industrial Co., 385 U.S. 432 (1967) - Info about bargaining unit employees: presumptively relevant - Other info: information must have some bearing on the issues between the parties. Kaleida Health, Inc., 356 NLRB 1373, 1377 (2011) Legal Authorities- Private Sector-- Federal Labor Law

-Public Employee Collective Bargaining Act (PECBA) ORS 243.672(1)(e) - Similar to private sector law - Must provide requested info that is of probable or potential relevance to a grievance or other contract administration issue. Legal Authorities- Oregon- PECBA

-Oregon Public Records Law ORS 192.311-431 - Not a relevance test like labor law - Attorney General s Public Records and Meetings Manual 2024 - Public record = [A]ny writing that contains information relating to the conduct of the public s business . . . prepared, owned, used or retained by a public body regardless of physical form or characteristics. ORS 192.311(5)(a) Legal Authorities- Oregon- Public Records Law

-Washington Public Employee Collective Bargaining Act RCW 41.56.030(4) - Similar to private sector law - Duty to provide the opposite party with requested information that is reasonably necessary to prepare for collective bargaining or contract administration. Legal Authorities- Washington- PECBA

- Not a relevance test like labor law - Washington Public Records Act (RCW 42.56.001 et seq) - Each agency must have a public records policy - - WA State Attorney General s basic guide to public records - Public record (WA)- Any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. Legal Authorities- Washington Public Records Laws

-Look at your CBAs grievance procedure or other provisions E.g.- All parties shall cooperate in the investigation of a grievance and promptly supply any readily available relevant information or documents to the other party. Legal Authorities- CBAs

-Arbitrators have lots of informal power to require both unions and employers to produce information neither the Company nor the Union should be allowed to withhold relevant and material testimony or other evidence except possibly in special circumstances. . . . Tectum Corp., 37 LA 807, 810 (Autrey, 1961) Legal Authorities- Arbitral Precedent

WHAT SHOULD YOU ASK FOR?

Scenario: What are the top 5 items to request? Worker fired for talking back to the boss and smashing company clipboard in anger when told to complete massive task. What Should You Ask For? Small Group Exercise (5 minutes)

Common examples: - Schedules - All info reviewed or relieved upon in making decision to discipline - Pay records - Clock-in/clock-out records - Personnel file - Training records - Comparator evidence - Supervisor/HR communications - Bargaining history - Text messages - Policies What Should You Ask For?

WHEN/HOW SHOULD YOU SEEK IT?

How? When? When Should You Seek It? (Group Discussion)

EMPLOYER TACTICS

Employer Tactics Union Responses - No response - Written reminder - Refusal - Demand letter - Request to pay - ULP - Insufficient response - Grievance - Redactions - Arbitrator intervention - Legal objections - Adverse inference in arbitration Employer Tactics

SPECIAL ISSUES

1) Confidentiality concerns 2) Cost of production 3) Privileges 4) Employer information requests 5) Others? Special Issues

EXAMPLE REQUESTS

- I represent [UNION]. Under the NLRA (Section 8(a)(5)), I request the following information relevant to fulfilling the Union s role as exclusive representative: [LIST ITEMS REQUESTED]. Please provide this information by [DUE DATE]. Example Requests- Private Sector

- I represent [UNION]. Under the PECBA (ORS 243.650 et seq.), I request the following information relevant to fulfilling the Union s role as exclusive representative: [LIST ITEMS REQUESTED]. Please provide this information by [DUE DATE]. - Under the Oregon Public Records Law (ORS 192.210 et seq.), please provide me the following records: [LIST ITEMS REQUESTED]. Please provide the records as soon as practicable and without unreasonable delay, but in no event later than 15 business days from this request. Example Requests- Oregon

- I represent [UNION]. Under RCW 41.56.010 et seq., I request the following information relevant to fulfilling the Union s role as exclusive representative: [LIST ITEMS REQUESTED]. Please provide this information by [DUE DATE]. - Under the Washington Public Records Act (RCW 42.56.001 et seq), please provide me the following records: [LIST ITEMS REQUESTED]. Please provide the records within 5 business days of this request. Example Requests- Washington

THANK YOU Noah Barish McKanna Bishop Joffe LLP 503-821-0960 nbarish@mbjlaw.com