Part of the obligation to collectively bargain in good faith is the obligation to exchange information about mandatory subjects of bargaining. This obligation frequently arises in a grievance arbitration setting, where either the employer or the union is seeking records in the other’s possession.
A slight twist on the usual case occurred in Newark, New Jersey, where Lodge 12 of the Fraternal Order of Police (FOP) was processing four grievances involving alleged disparate treatment of bargaining unit officers who received sick leave counseling. The FOP requested that the City provide it with the sick or injured leave records and the counseling forms for unit and non-unit employees in the 12-month period preceding the filing of the grievances. When the City rejected the request, and particularly that portion of the request seeking the sick leave records of supervisors, the FOP filed an unfair labor practice complaint.
New Jersey’s Public Employment Relations Commission ruled that the City had an obligation to provide sick leave records. PERC ruled that “an employer must supply information if there is a probability that the information is potentially relevant and that it will be of use to the representative in carrying out its statutory duties. The Hearing Examiner was concerned that the FOP’s effort in that regard is beyond its legal entitlement and is burdensome to the City. The Hearing Examiner should have determined whether the comparative information for non-unit members was relevant to the grievances.
“The FOP cites to the undisputed fact that the sick leave policy applies equally to both FOP members and supervisors. Relevance is determined through a discovery-type standard, therefore a broad range of potentially useful information is allowed to the Union for effectuation of the negotiations process. However, a union’s right to receive information from an employer is not absolute. The employer is not required to produce information clearly irrelevant, confidential or information it does not possess.
“The four grievances at issue here involve alleged disparate treatment of officers who received sick counseling. Each officer alleges that other officers in their command had worse sick records, but were not counseled. The FOP alleges it requires the documentation of non-unit employees to evaluate the merits of the grievances. In one grievance, the officer alleges that she was counseled by her superior officer who has a worse sick record. The sick records of non-unit employees, on this record, are relevant to the grievances in issue as there is a possibility the information is potentially relevant to the grievances and will be useful to the FOP in carrying out its statutory duties. The probative value of the information, if used, is for the Arbitrator to determine.”
City of Newark, No. 2013-73 (N.J. PERC 2013).