The National Labor Relations Board (NLRB) has ruled an employer does not have a duty to provide a union with relevant information that contains confidential material if the union has refused the employer’s offer to bargain over ways to protect its legitimate confidentiality interests. Oncor Electric Delivery, LLC, 369 NLRB No. 40 (Mar. 6, 2020).

Historically, the NLRB has ruled that the employer’s confidentiality interest in requested information should be balanced against the union’s need for the information, and that, as a part of this test, the employer must bargain with the union toward an accommodation or compromise that will give the union the information it needs while also serving the employer’s confidentiality interests. Oncor Electric Delivery provides employers some clarity on this balancing principle and shows that, to get the information it wants, the union has to fulfill its responsibility in bargaining over the accommodation.

In Oncor Electric Delivery, the employer, an electricity provider for the Dallas, Texas, area, employed electrical service workers who were represented by the IBEW. The collective bargaining agreement allowed the employer to assign work normally done by employees in the bargaining unit to non-bargaining unit employees, as long as the assignment did not reduce the “regular work hours” of bargaining unit employees. On at least two occasions, the employer assigned storm damage assessment to non-unit employees, resulting in the union filing grievances claiming this violated the contract. The union then filed a number of information requests, including one for copies of all “work orders” for storm evaluation work during a period of about 18 months. The requested information was deemed by the NLRB to be relevant to the union’s role as employee representative.

Significantly, the employer did not refuse to disclose the work orders. Instead, the employer told the union there were about 120,000 work orders and all of them contained confidential customer information that would have to be redacted. The employer estimated it would take about a month to copy and redact the documents at a cost of $16,000. The employer offered to copy and redact the documents if the union paid for it to do so.

For four months, the union did not respond. When it did, the union said it was willing to enter into a confidentiality agreement. The employer asked the union to prepare a draft confidentiality agreement for its consideration. The union did not respond.

Recognizing the employer had a “legitimate and substantial” interest in protecting the confidentiality of the customer information, the NLRB noted the employer’s own confidentiality policies considered the information confidential. In addition, Texas utility law required the employer to keep the customer information confidential. The NLRB ruled the employer did not violate the law — although the union did not receive the requested information — because the employer satisfied all of its legal obligations when it (1) first proposed the redaction at the union’s expense and (2) later said it would consider a confidentiality agreement if the union would draft one for consideration. The NLRB decided the union’s failure to respond to either of these employer responses “shut down” the required bargaining process. The NLRB ruled the union’s failure to obtain the requested information was its own fault for not bargaining over the employer proposals, which were offered to satisfy legitimate confidentiality interests.

Takeaways

• Employers should review their confidentiality policies to ensure compliance with federal law and are broad enough to encompass all information the employer believes should be kept confidential.

• Employers also should be aware of state and federal laws that require confidentiality, for example, such as those dealing with employee medical records.

• Employers should act consistently with any claims that information is confidential.

• When a union makes a request for such confidential information and it is relevant to an ongoing dispute, to a mandatory subject of bargaining, or to an argument made by the employer in negotiations, the employer should not simply refuse to provide the information. Instead, identify its confidentiality interest, propose reasonable arrangements, and express a willingness to discuss them.