Heihe The obligation for an employer to bargain under the National Labor Relations Act (NLRA) implies the obligation to consult in good faith with the employee representative on matters such as wages, working time and other terms and conditions of employment. Among the areas in which an enterprise may be required to provide the trade union with information for collective bargaining, an employer should not ignore or refuse the response, but should seek clarification or provide the information to the extent possible. The demands of a union must also be appropriate and not impose an excessive burden on the employer. The material identified above answers – at least in part – the two questions that were asked at the beginning of this article. The answer to the first question is that it is important, as it will be a question of determining whether the information requested is relevant to the employer/employee relationship and whether it is necessary to meet the needs of the union in the performance of its duties as representatives of collective agreements. The answer to the second question is clearly yes. If you refuse to provide information deemed relevant and necessary by a union, the union could and could likely file a charge of unfair labour practices with the NBR. Employers can still assert traditional defenses such as attorney and work product privilege that, when defined by the employer, can protect the disclosure of information/documents to a union. It was found that an employer`s notes taken during an investigation into worker misconduct are protected from disclosure under work product privilege. In general, the NLRB found that the work product privilege is applicable where a document was prepared as a result of an expected dispute and would not have been produced in a substantially similar form if the prospect of that dispute does not exist”; and (2) “The party representative must have had a subjective belief that litigation was a real possibility, and that belief had to be objectively reasonable.” The NLRB also held that the prospect of “litigation must not be real or imminent; it is sufficient that it is “fairly predictable”; and that the privilege “extends to documents drawn up pending foreseeable litigation, even if no specific claim is contemplated at the time the documents are drafted”. The applicable standard of relevance is a liberal, discovered standard similar to that used in litigation.
. . .