Reply – Re: TUTOR PERINI/HUDSON YARDS PRESS RELEASE
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Re: TUTOR PERINI/HUDSON YARDS PRESS RELEASE
— by Ted Ted
RELATED - HUDSON YARDS, THE PIG & THE POKE, BLIND MAN'S BLUFF
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A. Applicable Legal Principles

Section 8(a)(5) and (1) of the Act makes it an unfair labor practice for an employer to refuse to bargain collectively with the bargaining representative of its employees. See Oil, Chemical & Atomic Wkrs., Local Union No, 6-418 v. NLRB, 711 F.2d 348, 357-58 (D.C. Cir. 1983).
 
It is well settled that an employer’s duty to bargain in good faith includes the duty “to provide information that is needed by the bargaining representative for the proper performance of its duties.” NLRB v. Acme Indus. Co., 385 U.S. 432, 435-36 (1967). 

The critical question in determining whether information must be produced is that of relevance to the union’s bargaining duties. The “Board’s relevance standard is ‘a liberal discovery-type standard.’” E.I. DuPont De Nemours & Co. v. NLRB, 489 F.3d 1310, 1316 (D.C. Cir. 2007) (citation omitted); accord Acme Indus., 385 U.S. at 437 & n.6. Under that standard “[t]he fact that the information is of probable or potential relevance is sufficient to give rise to an obligation . . . to provide it.” Crowley Marine Servs., Inc. v. NLRB, 234 F.3d 1295, 1297 (D.C. Cir. 2000) (citation and quotation marks omitted).

As this Court has recognized, the duty to provide information relevant to the issues at the bargaining table is a “fundamental obligation” that is critical to the collective-bargaining process. Oil, Chemical & Atomic Wkrs., 711 F.2d at 358. Consequently, “[a] party to good-faith collective bargaining—whether it be employer or union—cannot reasonably expect the other party to buy a pig-in-[a]-poke.” Beyerl Chevrolet, Inc., 221 NLRB 710, 721 (1977); accord Acme Indus., 385 U.S. at 438 n.8 (noting that to deny a union information is to “‘require[e] it to play a game of blind man’s bluff’”) (citation omitted).

In sum, as the Supreme Court explained in NLRB v. Truitt Manufacturing Co., 351 U.S. 149 (1956), “if . . . an argument is important enough to present in the give and take of bargaining, it is important enough to require some sort of proof of its accuracy.” Id. at 152-53.