Legal Perspectives on Managing Unionized Workforces®

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Under the National Labor Relations Act, unions are entitled to request information from an employer that is relevant to carrying out the union’s representation duties. The key limiting principle is that the union must demonstrate the “relevance” of information that does not pertain directly to the wages, hours or working conditions of bargaining unit employees. On February 28, the National Labor Relations Board (the Board) issued a decision that significantly alters the “relevance” test.

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The case in question involved Hawaii’s UNITE HERE Local 5 and a Hawaiian Hotel (“Hotel”). During the COVID-19 pandemic, the Hotel rolled out a “CleanStay” policy, which included several safety protocols, for its hotels. One of these protocols, to avoid exposing guests who feared COVID-19 to additional risk, was that guests would receive daily cleaning only if they asked.

While the Hotel was closed, the Hotel’s safety committee, composed of Hotel managers, union representatives and Hotel employees, continued to meet. A union representative later claimed that they asked management about the CleanStay policy during a safety committee meeting and were told that the policy would be implemented because guests did not want anyone coming into their rooms. The Hotel reopened in December 2020 with the CleanStay program in place, and all of the Hotel management’s communications with employees and the union stated that the program was implemented in accordance with the Hotel brand policy change.

In March 2021, the union requested guest surveys and other information from the Hotel concerning the policy change, claiming that the employer mentioned guest feedback at the prior safety committee meeting when explaining the CleanStay program. The Hotel rejected the request, stating that the information was not relevant because the policy change was based on the Hotel’s CleanStay program rather than guest concerns. The Hotel specifically refuted the union’s statements concerning the safety committee meeting and explained that management had said only that “it is the guest’s choice whether to request housekeeping service during the guest’s stay.” The union filed an unfair labor practice charge, claiming that the Hotel was withholding information relevant to the union’s representation of bargaining unit employees.

The Board issued a decision in favor of the union, affirming an administrative law judge’s ruling. The Board found that the union’s claim about what was said in the safety committee meeting, although factually contested by the Hotel, was sufficient to establish the union’s “reasonable belief” of relevance. The Board further found that even setting aside the union’s version of the safety committee discussion, Hotel management’s letter rejecting the information request justified the reasonable belief of relevance because the letter referenced “guest choice.” The Board ignored that management was refuting the union’s claim and ruled that the mention of guest choice&nbsp;<em>in the letter&nbsp;</em>constituted objective evidence justifying the union’s belief. Bottom line: Employers can expect to see a new union strategy — request now, justify later.

The Board’s ruling has significant implications for union information requests.

Previously, unions needed to demonstrate relevance by establishing a reasonable belief based on objective evidence.

Today, evidence seemingly need not be objective to establish relevance — information received after the request can be used to justify relevance.

Employers must carefully craft a response to a union’s request for information if the goal is to refrain from producing irrelevant information.

The NLRB Embraces Relativism in its Relevance Test