By: Yoko Kuramoto-Eidsmoe, Washington Education Association Staff Organization
Graphic: Kim Tallarico, Ohio Associate Staff Union
While many NSO members are accustomed to digging up information about employers, those less familiar with the shadowy underworld of advocacy and bargaining may see document requests as mysterious and foreboding. But with a few tricks up your sleeve, you can ensure that your affiliate comes back with a goodie bag full of treats.
So why do union advocates request information? Justin Zartman, NSO Vice President of Defense, says affiliates can and should request information when bargaining with the employer and in grievance situations.
Grievances / Advocacy
In cases where NSO affiliates are challenging discipline against a member, for example, we may be arguing that the member was not given notice of a work rule. So, we want the employer to demonstrate how, when and whether employees were told of a work rule.
Unequal treatment of employees is another reason we may be challenging discipline as unfair under the “seven tests of just cause.” Zartman gives this example of one scenario that an employer’s records can reveal:
“If I don’t submit a timely report every other week, which is required by the employer, and nothing happens to me, because I’m, you know, a brown-noser to the boss, but then you don’t submit one once, and all of a sudden you’re written up or worse, that’s unequal treatment.”
Not only are unions legally and contractually entitled to information, but “it’s really the obligation of the union to do some research to see if a grievance is warranted,” Zartman says.
Employers may resist providing discipline information about non-bargaining-unit members by citing privacy issues, but that information can still be provided with names redacted to show whether employees are being treated equally.
It’s one thing to feel that discipline is unfair, but proving that is key to either persuading the employer or winning an arbitration. And, Zartman says, information about how an investigation was conducted can also persuade an arbitrator. That includes who conducted the investigation, how timely it was and whether a fair investigation was completed before discipline was issued.
Bargaining
One way that information requests for bargaining differs from those in advocacy is in timing. Union advocates typically wouldn’t request information about a discipline matter until either a notice is issued or after they become aware of an investigation that could lead to discipline.
But in the case of bargaining, there’s a whole host of issues we can anticipate in advance.
Financial disagreements are common, particularly when it comes to whether the employer can “afford” increases in pay or benefits — or they “must” make cuts. For bargaining, Zartman advises teams to request information well in advance of sitting down at the table. (Additional requests can be made as other issues come up.)
Some documents you can request include contracts and addendums to contracts with management and other non-bargaining-unit employees, Department of Labor LM2 forms and IRS 990 forms.
“If they use the financial argument when bargaining, you have a right to know what they are spending their money on,” Zartman says. “So, if they ever argue, ‘we’re down membership,’ or ‘because of the stock market’ or whatever it may be ‘our accounts aren’t growing,’ then show us that, right?”
In addition to getting information directly from the employer, some information may be available in the financial reports that NEA affiliates provide to their members at a Representative Assembly or in other widespread distributions. Zartman also recommends Guidestar as a place where you can find information online about nonprofit employers.
Request early, request often
In addition to asking for information as soon as you think you might need it, Zartman advises affiliates to include a reasonable timeframe for a response, such as two weeks.
That way, if they don’t respond and you must file a complaint with the National Labor Relations Board, you can show that the employer clearly did not respond as requested. “If it’s just open-ended without a deadline, they can say, ‘Well, we were still working on it,’” Zartman says.
Another piece of advice?
“When in doubt, request more information,” Zartman says. “Don’t just say, ‘OK, I don’t think we have a right to that.’ Let them tell you that you don’t have a right.”
You can also contact your NSO regional director if you need help in disputes about information requests.
In addition, Zartman points out, an employer’s refusal to provide information can be a good organizing opportunity, particularly among members who might need evidence that their union is being reasonable — or the employer is not.
“You can say, ‘You know, we requested this information, here’s the request we made, and they haven’t provided it,’” Zartman says.
Additional resources
Sample information request for bargaining