Scholarly Articles and Other Contributions
 

Document Type

Article

Publication Date

1972

Abstract

The imposition of an affirmative obligation on an employer to provide his employees' exclusive bargaining representative with various kinds of information has been one of the most significant developments in the evolution of the concept of good faith bargaining under section 8(a)(5) of the Labor Management Relations Act. This development has been in part a response to the realization that certain information acts as the lubricant needed to keep the collective bargaining machinery running smoothly. It recognizes that the parties can negotiate and administer a collective bargaining agreement only when they have available the information necessary to make informed, intelligent decisions. The employer's obligation to provide information to the employees' bargaining representative has evolved from contributions by both the National Labor Relations Board and the judiciary. In the early stages of this evolution, attempts were made to classify types of requests for information. A dichotomy arose between requests for employee wage data, which were presumptively relevant to the bargaining process, and requests for other types of information. As the law in this area developed, the Board demonstrated a growing propensity to accord the presumption of relevance to data other than employee wages. More recently, a "substantiation doctrine" has been utilized to require the employer to furnish data, and the type of data requested has become less significant.

This article will examine this evolutionary progression and will discuss whether the Board and the courts in the "substantiation" cases have adopted a rationale which is significantly different from that of the traditional "information" cases, and whether the Board and the courts have been consistent in their application of the substantiation doctrine vis-a-vis various types of information in diverse factual contexts.

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