In a recent case, the Board confirmed the maxim that if you make a factual assertion during negotiations, a union has the right to information to determine the validity of that assertion. In Kraft Foods, 355 NLRB No. 156 (2010), the Board determined it was an unfair labor practice for the employer to refuse to provide information regarding benefit plans in effect at other facilities. The Board's rationale was grounded on the fact that in years past, the employer had compared the benefits and compensation available at the facility in question to other facilities it owned. Therefore, the Board concluded, the employer made this information relevant.

A more troubling aspect of the Board's decision involved the timing of the request. The union initially requested the information regarding other benefit plans 15 months before negotiations were to begin. The Board majority (Members Liebman and Becker) brushed aside the seemingly premature request by noting that it would have been imprudent for the union to wait to request the information, because by making the request early, if the employer refused, the union would have time to seek relief from the Board. (Members Liebman and Becker failed to comment on the fact that the charge in this case was filed in May 2001 and the Board's decision was issued in August 2010.)

The Board's rationale regarding the timing of the request is dubious in this blogger's opinion.  However, the rationale with respect to relevance is sound.  Employers should keep in mind during negotiations that if comparisons are made between the bargaining unit and other groups of employees, the employer is making information regarding those comparator groups relevant and likely obtainable by the union.